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Commentary: Medellin, Kennedy and the Meaning of Silence


Many thousands of words about the death penalty have been written or spoken to or by the Supreme Court in recent months, but in the past few days the Court – supposedly on its summer break — has had to think hard about the meaning of silence.

It is being asked, by the U.S. Solicitor General and the state of Louisiana, to reopen its decision in Kennedy v. Louisiana (07-343) to fill in a gap in that ruling about Congress and the death penalty for the crime of child rape.  And, on Tuesday night, a majority of the Court actually based its decision in the death penalty case of Medellin v. Texas (08-5573) in part on the silence of the Solicitor General and a gap in utterance by Congress.

The lesson is obvious: on an issue as volatile as capital punishment, every last argument — including an argument not made — may turn out to be weighty authority.  Of course, that is not the norm. The Court routinely reminds lawyers that it will not consider an argument that was not raised in lower courts.  It also says frequently that it will not interpret the absence of action by Congress or state legislatures as proof of anything about what the lawmakers really intended on a given subject.

But, of course, as the Court also says often, the death penalty is different.  But it may be different in different cases.

 The fate of Patrick Kennedy in Louisiana, on death row after being convicted of raping his eight-year-old stepdaughter, is still unknown, as he awaits the Court’s reaction to the suggestion that it left out something vital in June when it struck down such a death sentence.  For Jose Ernesto Medellin, the 33-year-old Mexican national condemned for his role in a gang rape and brutal murder of two teenaged girls 15 years ago, any debate over what was not said in his case ended Tuesday night when he died from a lethal injection in the death chamber of a prison in Huntsville, Texas.

In both cases, though, the role of the two political branches of the federal government — including roles not played — could be seen as one crucial factor.

 In the Kennedy case, the state of Louisiana and the U.S. Solicitor General’s office are taking the position that the Court must speak again, or its silence on a 2006 federal law on the death penalty for child rape would mean that the law would have been nullified “without argument.” When the Court in June found a “national consensus” against the death penalty for that crime, it said Congress had not adopted such a law.

It turns out, the Court has now been told, that that omission was due to unawareness by the state and the Solicitor General of the existence of a military law on that very subject.  Both have said they regretted their error, but have said that, nonetheless, the Court should now take that law into account.

On July 21, the state urged the Court to grant rehearing, or at least to seek the views of the Solicitor General. “This Court,” its petition said, “has not hesitated to hear from the United States before one of its laws is set aside, and should not do so now.”

The Court did not have to invite the Solicitor to submit views. One week later, Acting Solicitor General Gregory G. Garre and his associates from the Justice Department and the Pentagon urged the Court to rehear the Louisiana case.  “Rehearing is warranted to ensure that a material omission in the decisionmaking process has not tainted the Court’s decision on a matter of such profound constitutional, moral, and practical importance,” the Court was told.

The Solicitor General had not taken any part in the case up to that point.

Although the Court is likely to act on the rehearing issue later this month, it has the option of asking first for the views of Patrick Kennedy’s lawyers.

In the Medellin case, the Solicitor General has been an active participant in that case, and in the international legal dispute over Texas’ conceded violation of Jose Medellin’s treaty rights, for at least four years. President Bush personally intervened to order the state of Texas to take some action to carry out a 2004 World Court decision that called for such action because of that treaty violation.

The Solicitor General’s office joined in Medellin’s case when it was before Texas’ highest criminal court, and filed a brief in June 2007 in the Supreme Court when Medellin appealed. That brief argued that the President had the authority to take steps to implement the World Court decision and the Vienna Convention on which that ruling was based. Paul D. Clement, at the time the Solicitor General, took part in the oral argument on Oct. 10.

The Court, in its decision March 25, ruled against Medellin, and against the President’s arguments.  It found that only Congress could act, by the normal legislative route, to turn the World Court ruling into domestic law, and concluded that it had not done so.

It rejected an argument by the President’s lawyers that, while Congress had not directly legislated the Vienna Convention into a binding law in the U.S., Congress had acquiesced in the President’s action. “Even if we were persuaded that congressional acquiescence could support the President’s asserted authority…, such acquiescence does not exist here,” the Court concluded.

The Bush Administration’s lawyers were involved also in recent months as the World Court took up another plea by Mexico to spare Medellin’s life until his Vienna Convention rights had been satisfied.  The U.S. representative told the tribunal in June that the U.S. was working with Texas to find a way to carry out the ruling.  He noted that Secretary of State Condoleeza Rice and Attorney General Michael B. Mukasey were directly involved.

After those efforts failed, and Medellin’s Aug. 5 execution date approached, his lawyers returned to the Supreme Court, seeking different approaches that would delay the execution and obtain the review of whether Medellin’s treaty rights violation had affected his conviction and sentence.

Four members of the Court, it was disclosed Tuesday night, wanted to ask the Solicitor General for the government’s views at this stage.  That number is usually sufficient to make the request.  But the four Justices did not press it, since they could not gather a fifth vote for the majority needed to delay the execution in the meantime.  “It is particularly disappointing,” Justice Stephen G. Breyer wrote, “that no Member of the majority has proved willing to provide a courtesy vote for a stay so that we can consider the Solicitor General’s view once received.”

The unsigned majority opinion noted Congress’ inaction, and the silence of the Justice Department.  Congress had not taken steps to implement the Vienna Convention, the opinion said, “beyond the bare introduction of a bill in the four years since the [World Court] ruling and the four months since our ruling in Medellin v. Texas….Neither the President nor the Governor of the State of Texas has represented to us that there is any likelihood of congressional or state legislative action.”

It added: “The Department of Justice of the United States is well aware of these proceedings and has not chosen to seek our intervention.  Its silence is no surprise: The United States has not wavered in its position that [Medellin] was not prejudiced by his lack of consular access.”

The Court’s 5-4 rulng, denying all relief to Medellin, along with the four dissenting Justices’ separate opinions, were released publicly shortly after 10 p.m. Tuesday.  Within the hour, Texas completed the execution process.

The question of domestic and international law, however, is not necessarily resolved. For four other Mexican nationals on death row in Texas, the World Court has ordered the U.S. government to take steps to put off those executions while the tribunal considers further possible action.  Congress is not expected to act in the meantime, and it is not yet known whether any effort will be made to draw in the Solicitor General’s office should any of those cases reach the Supreme Court.