Re: Your comment in # 4. I would hope that other countries treat Americans the same way Texas treated Medellin in this case. Namely, they would have gladly offered to let him speak to someone from his embassy HAD HE EVER BOTHERED TO ASK THAT REQUEST AFTER HE WAS ARRESTED. What Texas understandably refused to do was set aside his conviction and punishment after the fact simply because he decided to raise the issue years later on appeal in order to test a potential loophole. Americans shouldn’t fear similar treatment in other countries.

There’s an easy way around that: figure out what their Constitution allows, and stick to that.

Of course, that requires having an honest Supreme Court that acknowledges a written Constitution, rather than making up a “Living” one.

Except that is exactly how international politics work.

Also, this case was decided in the 1st sitting back in October so there weren’t really any other cases outstanding for him to bargain over. Do you really think he told Kennedy “I’ll concur here if you go with me in a couple months on Boumedienne”? That doesn’t really fly.

Not true at all. 6-3 always looks better than 5-4; especially given Roberts attempts to make the court look more united. Of course, that doesn’t mean he did trade his vote. But given that this is not a very Stevens-like opinion I do wonder.

There are many people who believe that the death penalty is morally wrong. Some of them are Supreme Court Justices. Most of the leaders of the civilized world is also in this camp.

These Justices who will never vote for anything that will further the application of capital punishment. And legal advocates will look to find and use any barrier to putting a prisoner to death — that’s their solemn promise to themselves.

So that’s what we’re seeing here. The ICJ (speaking for the civilized world) wants to force the U.S. to ban the death penalty, or at least to prevent anyone from being executed. The dissenters attach their unspoken views to the procedural arguments to further their cause. These tactics often are successful, and will continue to be used until all avenues are extinguished for each condemned man or woman.

But the majority of the Court has their own tactics. (They happen to reflect the majority of the country and the congress, but this is really irrelevant.) The majority has fashioned an interpretation of the treaties that serves their purpose — not to let the world dictate to us on a matter of morality.

Unfortunately, both sides in this long-standing charade — by using any tactic (actor, law, constitutional interpretation, treaty, etc.) to serve their desired end — are harming those actors, laws, treaties, and indeed the Constituion itself by distorting them beyond recognition. The result is an even more fetid swamp without any clarity of argument, much less any resolution of a likely-unresolvable (and in the end, political) issue.

What’s said and written by both sides in capital cases is hardly ever the real argument.

Also, if you look at the remaining cases and the opinons thus far, it’s clear that the conservatives won Williams as well with either Scalia or Alito writing and as far as Boumedienne, it’s either Kennedy, Ginsburg or Souter with Kennedy by far the most likely author. If it is Kennedy, there’s a good chance the conservatives won that one as well as Stevens would have written it if the liberals had won.

When you add in the arguments in Baze, Crawford and Heller, it looks like another good term for the conservatives all around.

The problem with this statement is that this is not the way international politics work. That may be true domestically, but how comfortable would you feel as a foreign power making a treaty only to find out years later that what you thought you had agreed to was, in fact, a violation of the other parties constitution. For a contract to bind, it must be met with full faith and credit by other parties. I can assure you that if I were a foreign power I would be far more hesitant to agree with the US on a treaty regarding anything, given the fact that years later it could be overturned. This is especially true given that it was overturned on so flimsy a reason. So while I would agree that this opinion does not directly limit the power of the president beyond this one case, I believe its practical effect will be lessen the trust that other countries place in the president treaty-making powers and that indirectly limits his power.

“Rather, the “undertakes to comply” language confirms that
further action to give effect to an ICJ judgment was contemplated,
contrary to the dissent’s position that such judgments constitute
directly enforceable federal law, without more.”

That is, uh, to put it mildly…strained. It is hardly natural as Stevens contends (what the heck did he trade his vote for???). Undertake means to “do” or to “obligate”. The court holding is that undertakes means exactly the opposite of its plain meaning.