This post is part of our Discussion Board regarding the Court’s decision in Medellin v. Texas.  The following entry is by Professor Ernie Young of Duke Law School.  He filed an amicus brief in support of Texas, on behalf of Constitutional and International Law Scholars.

Having served as counsel of record for the Scholars’ Brief in support of Texas, I think this is a great day for the Constitution. I’ve posted a more extensive discussion of the Medellin opinions and their implications over at the Opinio Juris blog here. In this post, I’d like to make few additional points:

First, God bless Justice Stevens. Although his heart seemed to be with the dissenters in some respects, his vote was the only one standing in the way of the case turning on the Court’s familiar 5-4, left-right split. I think it would be extremely unfortunate to view issues concerning the relationships between domestic and international law and institutions in this way. After all, the next case may involve a NAFTA or WTO panel holding that domestic environmental laws violate international trade agreements.

Second, Justice Stevens’ concurrence rightly highlighted the important role and responsibilities of state governments in international law. International agreements like the Vienna Convention increasingly confer rights on broad classes of individuals that may come up with great frequency. Compliance is necessarily up to front-line law enforcers, who are overwhelmingly state and local officers and courts. We have come a long way from Justice Sutherland’s dictum in Belmont that “[i]n respect of our foreign relations . . . the State of New York does not exist.” Those who draft and interpret international agreements need to think hard about the reality that compliance may depend on officials outside a nation’s central foreign policy apparatus. And Justice Stevens was right to call on Texas to act in this case, although all should understand that such action will be difficult. Given the Court’s holding that the Avena judgment is not binding as a matter of domestic law, there is no statutory basis for the Texas courts to reopen Medellin’s case, and the Texas legislature will not re-convene until January 2009. The Governor could commute the sentence, as was done in a parallel case in Oklahoma, but there is no serious argument here that Medellin was innocent or an inappropriate candidate for the death penalty. Perhaps it should be enough simply to point out that the Texas intermediate court of appeal did assess his claim for prejudice from the Vienna Convention violation and found it wanting on the merits.

Finally, I am always surprised that critics of the application of procedural default rules in cases like Medellin do not seem to realize how rare American-style collateral review of criminal convictions is in the world. Procedural default is an issue only because Medellin went all the way through his trial and direct appeals without raising the Vienna Convention argument; that default blocks a second or third bite at the apple on state or federal habeas. But most other legal systems only give a single bite at the apple, period. If there is collateral review, it is generally only for actual-innocence review or fundamental rights violations (which consular consultation is probably not). So the U.S. has not denied Medellin the opportunity to raise a claim that he would have been able to raise had he been convicted by one of our treaty partners. This is, of course, an argument that Avena was wrong rather than that the Avena judgment is not enforceable. But it counsels a grain of salt to go with the international outrage that will likely meet the Court’s decision.

Posted in Medellin v. Texas, Everything Else