A Recent Supreme Court Decision on the Vienna Convention Reaffirms that Justice Stevens, at Eighty-Eight, Remains A Force to Be Reckoned With
By EDWARD LAZARUS
|Thursday, Mar. 27, 2008|
As the election approaches, the campaign is certain to focus more intently on the future of the Supreme Court and, in particular, on the issue of who might replace Justice John Paul Stevens, the oldest justice at 88 years old.
Yesterday's decision in Medellin v. Texas, however, provided an opportunity to put aside the crystal-ball-gazing and enjoy the fact that, after 33 years on the Court, Stevens, who penned a trenchant concurrence in the case, remains a vital force - full of insight and clear thinking.
The Facts, Rulings, and Executive Decision in the Medellin Case
The background for the Medellin case is a 2004 decision by the International Court of Justice (ICJ) involving 51 Mexican nationals - among them, Jose Ernesto Medellin. Each had been convicted in state court in the United States.
The Vienna Convention requires that foreign nationals subject to arrest in the United States must be notified that they have a right to consult with officials from their home country. The 51 Mexicans, however, received no such notice. Thus, in its decision in Case Concerning Avena and Other Mexican Nationals, the ICJ interpreted the Vienna Convention as requiring the United States to reexamine all 51 cases.
In 1993, Medellin was convicted in the brutal rape/murder of two Houston teenagers. At his trial, Medellin never raised the issue of his rights under the Vienna Convention. He did raise the issue, to no avail, in state post-conviction proceedings, but the Texas courts ruled that he was barred from raising the issue by his failure to raise it at trial.
Medellin continued to press the Vienna Convention issue in a federal habeas petition, but lost in federal district court in the United States. At this juncture, the ICJ handed down its Avena ruling calling for a re-examination of his case, but the U.S. Court of Appeals for the Fifth Circuit nonetheless ruled against him.
The Supreme Court then granted review, and was about to hear the case when Medellin got additional help from none other than President George W. Bush. In 2005, Bush issued a Memorandum to the United States Attorney General, providing that, pursuant to his authority as President, the United States would discharge its international obligations by having all state courts give effect to the ICJ's Avena ruling.
In light of this presidential proclamation, the Supreme Court dismissed Medellin's case and Medellin filed a new habeas petition, based on Avena and upon Bush's deployment of his presidential authority. The Texas state courts, however, refused to heed either the ICJ's ruling or Bush's Memorandum. They dismissed Medellin's second petition for a writ of habeas corpus as procedurally barred under state law - and the U.S. Supreme Court granted review a second time, leading to the decision that was recently rendered.
The Issue the Supreme Court Resolved in Medellin, and the Reason It Was Tricky
The issue presented in Medellin was double-barreled. First, given that the U.S. is a signatory to the Vienna Convention and to the United Nations Charter (in which each member agrees to "undertake to comply" with ICJ decisions), are U.S. state courts bound to give effect to the ICJ's Avena decision? Second, even if the state courts were not bound directly by Avena, were they bound to comply with Bush's Memorandum specifically directing them to comply with Avena?
Although Medellin was argued without much fanfare, it required the Justices to come to terms with some very tricky and important ideological cross-currents. At the risk of oversimplification, many of the conservative justices are devoted to both states rights and presidential power - but in Medellin, the two concepts were at war with one another. The conservatives thus had to choose between them. The case also pitted the Court's internationalists (such as Justice Stephen Breyer) against those on the Court (such as Justice Antonin Scalia) who largely disdain international law. In some recent death penalty cases, a more internationalist perspective had prevailed. Would it do so again?
How the Opinion Authored By Justice Roberts Resolved the Key Issues
The opinion authored by Chief Justice Roberts offered definitive answers. The opinion reasoned that the Vienna Convention provisions requiring consular notification did not have the force of domestic law (which the states would have had to obey under the Constitution's supremacy clause). The Vienna Convention, the majority held, was not a "self-executing" treaty - and, as such, could become binding domestic law only if made so by a further act of Congress. As there had been no such act of Congress, the Convention was not binding domestic law.
In the majority's view, the fact that the U.S. had bound itself to "undertake to comply" with ICJ rulings under the United Nations' Charter did not change the equation. According to the majority, this language meant only that signatory nations had agreed to take additional steps to make ICJ decision binding upon themselves - not that they had agreed that such decisions had binding force, in and of themselves, if no other steps were taken.
The majority also flatly rejected the Bush Administration's claim that it could make the ICJ decision binding by presidential memorandum. "The president," the majority wrote, "has an array of political and diplomatic means available to enforce international obligations, but unilaterally converting a non-self-executing treaty into a self-executing one is not among them." In short, congressional action was an absolute prerequisite to making the ICJ decision binding. And again, there had been no congressional action taken here.
The Reasoning of the Dissent, and the Ingenious Approach of Justice Stevens's Concurrence
In a dissent joined by Justices David Souter and Ruth Bader Ginsburg, Justice Breyer opined, equally emphatically, that the ICJ's Avena decision was, indeed, binding domestic law. He added, too, that the Court's contrary conclusion meant that the "Nation may well break its word even though the President seeks to live up to that word and Congress has done nothing to suggest the contrary."
Meanwhile, Justice Stevens found himself perched between the two camps. Although he was obviously drawn to much of Breyer's argument, he ultimately concluded that Congressional action was necessary to make the ICJ decision binding on state courts, and that the president had no unilateral authority to change the fact that such action was necessary.
But what is especially compelling about Stevens' concurrence is not the reasoning he sketches out for reaching this conclusion, but the practical lessons he draws from the case. As he points out, to a substantial degree, the Court's conclusion that the ICJ decision is not binding law on the state courts of Texas should be the beginning, not the end, of the relevant analysis.
Here's why: Let's assume that, as the majority held, the ICJ decision ordering a reopening of the cases is not binding. Nonetheless, the United States did affirmatively promise to the international community, when it signed the U.N. Charter, that it would, by a means of its own choosing, take action necessary to comply with the ICJ judgment.
Under the Supremacy Clause, this duty of compliance falls on all the states as well. And it falls especially heavily on Texas - which, by failing to provide consular notice to Medellin, in the first place, had placed the nation in violation of its Vienna Convention obligations. As Stevens summed up the situation, "having already put the Nation in breach of one treaty [the Vienna Convention], it is now up to Texas to prevent the breach of another [the U.N. Charter]."
The cost to Texas of voluntarily reviewing Medellin's case is, as Stevens noted, negligible. There is no risk that such a review would change anything. What chance is there, after all, that Medellin's lack of consular notice actually prejudiced his case? Basically, none - which is why, in similar circumstances, Oklahoma unhesitatingly met the Nation's treaty obligation.
Stevens's Key Point: The Question Whether One Can Act Unilaterally Is Very Different From the Question Whether One Should Do So
Stevens' point here is a large one - with implications far beyond this circumstance. It is one thing, Stevens's opinion suggests, to claim sovereign inherent authority to resist the judgment of other bodies, and it is very much another thing to exercise - or decline to exercise - this authority wisely. Here, Texas, for no great reason, has tarnished the honor of this Nation.
Much the same can be said of the Bush Administration's claims to absolute authority in the war on terror. The Administration could have achieved most of its objectives by other means. But it risked constitutional confrontation and even crisis instead, by short-circuiting Congress, often secretly.
As Stevens seems to have grasped perfectly, claims of power and obligations to do what's right are not infrequently at odds.