Medellin Discussion Board: The Court Defers to Congress
The following post is part of a Discussion Board about today’s decision in Medellin v. Texas. This entry was written by Ricahrd Samp of the Washington Legal Foundation. He filed an amicus brief in support of Texas, on behalf of the parents of one of the murder victims and also on behalf of the Washington Legal Foundation.
Perhaps the most striking aspect of today’s Medellin decision was the Court’s professed willingness to defer to Congress when it comes to deciding which decisions of foreign tribunals are binding on U.S. courts. The majority stated that it would have been quite willing to be bound by the International Court of Justice’s determination of U.S. obligations under the Vienna Convention, if Congress had decreed that U.S. courts should be so bound.
That show of judicial humility is in contrast to comments made by several of the justices at oral arguments. Justices Kennedy and Scalia in particular seemed indignant at the suggestion that they could ever be required to abide by a judgment of the ICJ, especially because that judgment was based on an interpretation of the Vienna Convention that the Court had rejected in Sanchez-Llamas v. Oregon. (One of them invoked Marbury for the proposition that it is up to the Supreme Court to say what the law is.) But the Chief Justice’s opinion is a paean to judicial humility (particularly at pp. 18-20 of the Slip Opinion). Only the three dissenters would have allowed the courts to play a role in picking and choosing when judgments of the ICJ should be enforceable in U.S. courts. The Chief Justice said that the ICJ’s Avena judgment was not enforceable because Congress had indicated that such judgments are not judicially enforceable but indicated that U.S. courts are required to enforce any judgments that Congress says they are required to enforce regardless whether they disagree with the foreign tribunal’s reasoning.
Interestingly, although it appears that this is pretty much the end of the line for Medellin (any subsequent federal habeas petition is doomed to failure after today’s decision), the decision keeps very much alive the possibility that other criminal defendants can invoke the Vienna Convention. The majority decision “assumed without deciding” (fn. 4) that the Convention grants foreign nationals an individually enforceable right to consular notification, and the right to be informed of that right. Justice Stevens and the three dissenters all concluded that there are such rights. So, for example, trial counsel in federal criminal proceedings would have a plausible claim that a confession should be suppressed if given without the defendant being told of his right to consular notification. While Sanchez-Llamas strictly limited the power of federal courts to grant habeas relief from state criminal convictions based on Vienna Convention violations, there is no indication in either that opinion or today’s opinion that they are similarly constrained when federal convictions are at issue.
Finally, it struck me as odd for Justice Stevens to suggest that Texas courts would be doing the right thing were they to agree voluntarily to consider Medellin’s Vienna Convention claim. After all, Stevens agreed with the majority that Congress had forbidden U.S. courts from giving binding effect to the Avena judgment. If so, then one would expect him to recognize that Texas courts are equally bound to follow the dictates of the Texas legislature, which has adopted legislation that prohibits Texas courts from considering procedurally defaulted claims in state habeas corpus proceedings.
I think referring to the ICJ as a “foreign” tribunal is a bit off the mark. While par in parem no habet imperium, non habet iurisdictionem is undoubtedly still the law (Alvarez notwithstanding), the ICJ is distinct in that the U.S. consented, at least for a time, to its jurisdiction.
Comment by Trey Forgety — March 25, 2008 @ 7:07 pm
Oh, and that “voluntarily agree…” bit is a nod to the ICJ’s decision in the case concerning the Arrest Warrant of 11 April 2000 where the World Court declared that Belgium was under an obligation to “voluntarily” quash a warrant issued in violation of the personal immunity of the Congolese foreign minister.
Comment by Trey Forgety — March 25, 2008 @ 7:10 pm
Suppression of a statement given in “violation” of the Vienna Convention seems a stretch. Suppression of relevant evidence is pretty much an American thing, and it would be weird to engraft that onto an international treaty.
Comment by Sean O'Brien — March 25, 2008 @ 7:52 pm
I think the poster is operating under some misunderstandings. The Court didn’t hold that Congress had forbidden U.S. Courts from giving binding effect to the Avena judgment, merely that it wasn’t going to do so in the absence of Congressional implementation. The Court simply said the Avena judgment, in combination with the treaties, was not (yet) federal law. But, as the majority conceded, to say that something is not federal law is not to say that the U.S. is not obligated by international law to act. Stevens was chastising Texas–a part of the United States–for spurning this obligation and, by doing so, risking the observance of these rights as to American citizens abroad by other nations. (The Texas Court actually went out of its way to construe state law so as not to afford any relief, when the reality is that the situation post-Avena fit the statutory exceptions for merits consideration, which is all the Avena judgment required.)
Comment by Brad Stevens — March 26, 2008 @ 2:05 am
Brad,
Perhaps you misunderstood my original post. Of course the Supreme Court was free to give effect to the Avena judgment if it had, in fact, believed that the Avena judgment was an accurate determination of U.S. obligations under the Vienna Convention. But the Supreme Court already determined several years ago in Sanchez-Llamas that Avena was wrongly decided, that the ICJ erred when it concluded that Vienna Convention violations were not subject to waiver under state procedural default rules. That decision established that the Supreme Court would not defer voluntarily to Avena’s legal conclusions. So the issue in Medellin was whether, despite the ICJ’s legal error, the Avena judgment constituted a “binding” obligation on the state and federal courts of the United States. The Court ruled yesterday that Avena was not binding because Congress had determined ICJ rulings are not binding — when the Senate ratified the Optional Protocol, Article 94 of the UN Charter, and the ICJ Statute, and when Congress failed to adopt subsequent implementing legislation. The Court made clear that the issue of whether ICJ judgments constitute binding federal law is to be determined solely by Congress; it explicitly rejected the notion that courts are empowered to “pick and choose which [treaty obligations] shall be binding United States law . . . and which shall not.” Slip Op. at 19.
Regarding Justice Stevens: I gather you believe that the Texas Court of Criminal Appeals erred when it determined that Texas law barred Medellin from seeking further collateral review of his Vienna Convention claims. But I doubt that Justice Stevens believes that it is his place to second-guess a Texas court’s interpretation of Texas law. He is free to suggest that the Texas legislature should change Texas law; I was questioning his apparent suggestion that the Texas courts should consider Medellin’s claims anew despite the statutory bar.
Comment by Richard Samp — March 26, 2008 @ 2:29 pm