The Supreme Court Dismisses the Controversial Consular Rights Case:
A Blessing in Disguise for International Law Advocates?

A few weeks ago, the U.S. Supreme Court dismissed "as improvidently granted" the petition for review filed by Jose Ernesto Medellin.

Medellin was one of the most widely followed cases before the Supreme Court this term because it promised to address two important questions:

First, does the Vienna Convention on Consular Relations (VCCR) afford foreigners an individual right to consular notification and assistance in the event of arrest?

Second, are certain judgments of the International Court of Justice (ICJ) binding on U.S. courts?

Many observers had hoped the Medellin case might result in a landmark opinion defining the role of international law and institutions in the U.S. justice system. When the Court dismissed the case, they felt a valuable opportunity had been squandered.

However, as we will argue in this column, advocates of international law should not be so quick to chalk up Medellin as a loss. In fact, the per curiam opinion (that is, the unsigned opinion on behalf of a majority of the Justices) dismissing the case indicates that the stage is now set for an even more impressive display of legal fireworks on these issues in the relatively near future.

The Facts of, and Issues Raised by, Medellin v. Dretke

The case began when Medellin, a Mexican national, was convicted and sentenced to death in Texas state court for a 1993 rape and murder, without ever having been informed of his right to contact the Mexican consulate as required by the VCCR.

After Mexico found out about Medellin's detention, it commenced legal action against the U.S. in the ICJ. In the case of Mexico v. United States - also known as the Avena case - Mexico sought relief for Medellin and 50 other Mexican nationals who, like Medellin, were on death row in American prisons, yet had never been informed of their VCCR rights

In 2004, the ICJ ruled that U.S. courts had to grant "review and reconsideration" of all 51 cases. Accordingly, Medellin petitioned for a writ of habeas corpus in the federal court system, asking for just such review and reconsideration.

But the Fifth Circuit Court of Appeals refused to grant habeas relief. It held that the VCCR did not create individually enforceable rights. It also held that, even if individuals could assert VCCR rights, it was too late for Medellin himself to do so - for, according to the Court, he had procedurally defaulted his VCCR claim when he failed to raise it in state court.

The Supreme Court agreed to hear an appeal of the Fifth Circuit's ruling. But then President Bush issued a memorandum instructing state courts to "give effect to the [ICJ] decision" and thus grant "review and reconsideration" of the cases involving Avena inmates - presumably including Medellin. (For a more detailed factual background and a discussion of the legal posture of Medellin, see our earlier column on the case.)

Medellin then filed a new application for relief in state court in Texas. His application was timely, he pointed out, because neither the ICJ decision nor the President's memorandum had previously been available.

The U.S. Supreme Court then dismissed Medellin's appeal - as noted above - because, it noted, the Texas "state proceeding may provide Medellin with the review and reconsideration of his Vienna Convention claim that the ICJ required, and that Medellin now seeks in this proceeding."

Reasoning that Medellin had a chance of achieving the very remedy he sought from the Supreme Court, a five-Justice majority of the Court decided his appeal was no longer ripe for resolution. They wanted to avoid conducting proceedings "rival to those" in Texas.

How the Dismissal Sharply Divided the Justices of the Supreme Court

As noted above, five justices joined a per curiam opinion. But four dissented, thus highlighting the clear divisions on the Court regarding matters of both substance and procedure.

The four dissenting justices (Justices O'Connor, Stevens, Souter and Breyer) felt that although the Court could avoid the important issues the case raised, it ought not to. Justice O'Connor remarked, "It seems to me unsound to avoid questions of national importance when they are bound to recur." The dissenters would have sent the case back to the Fifth Circuit, to reconsider the variety of federal issues raised in this case in a manner that pays deference to the Avena judgment and the President's memorandum.

Certainly, Justice Breyer, in a dissenting opinion joined by Justice Stevens, seemed to think that especially in light of the President's memorandum, the Fifth Circuit ought to rethink its opinion. He wrote, "Medellin's legal argument that 'American courts are now bound to follow the ICJ's decision in Avena' is substantial, and the Fifth Circuit erred in holding the contrary." And he predicted, given the President's determination that state courts must give effect to the Avena judgment, "the very real possibility of [Medellin's] victory in state court." Justice Souter, in a separate dissent, expresses a similar view: The ICJ decision in Avena, he wrote, "may be entitled to considerable weight, if not preclusive effect."

The Dismissal: Why It May Be a Blessing in Disguise for Medellin

By dismissing the case, the Court, whether intentionally or not, may well have done Medellin a favor.

In addition to deferring to the ongoing state court proceedings, the majority also noted that there were five "threshold issues that could independently preclude federal habeas relief for Medellin, and thus render advisory or academic our consideration of the questions presented."

Had the case proceeded, there was a strong likelihood that Medellin would not have been able to overcome all five of what Justice Ginsburg termed "procedural hindrances." Thus, had he been restricted to only federal court claims, he might have lost. Now, however, he may win in state court, instead - and if the judgment raises federal issues, the Supreme Court may still review it.

In addition to reviewing cases from federal appellate courts, the Court also has the power to review state Supreme Court cases that raise federal issues. That's why Justice Ginsburg pointed out, in her concurring opinion, that dismissal made sense because, after the Texas state court proceedings had concluded, "this Court would have jurisdiction to review the final judgment in the Texas proceedings, and at that time, to rule definitively on the 'the Nation's obligation under the judgment of the ICJ if that should prove necessary.'" Moreover, as Justice Ginsburg notes, the Court could "resolve, clearly and cleanly, the controlling effect of the ICJ's Avena judgment, shorn of procedural hindrances that pervade the instant action."

The per curiam opinion in Medellin, like Justice Ginsburg's concurrence, also anticipates a return to the U.S. Supreme Court - one that would be "unencumbered by the issues that arise from the procedural posture of this action."

Thus, a majority of justices contemplates that if review is granted in the future, the Court will have a broader mandate to pass on the crucial issues outside the limitations of federal habeas corpus review. And review, it seems, will be granted: It takes only four votes to grant review, and the four dissenters who want to review the case now, will doubtless provide votes to review later, too.

What Will Happen Next in the Medellin Case?

What might happen next - before the case returns to the High Court?

One possibility is that the Texas courts refuse to grant additional meaningful review, perhaps on the basis of a holding that neither Avena nor the Bush memorandum have significantly altered the legal landscape. If this occurs, yet another issue will be raised for the U.S. Supreme Court: In our federal system, can a state ignore a presidential determination on a matter impacting the Executive's prerogatives in the realm of foreign affairs?

Another possibility is that the Texas courts do grant meaningful "review and reconsideration" in accordance with Avena. If they rule for Medellin, the State of Texas can seek review; if they rule against him, Medellin can seek review. And at that point, as noted above, the Supreme Court will have the full array of substantive issues before it, absent federal procedural limitations that otherwise might have narrowed its review.

A final possibility is that the Executive branch of the State of Texas either would decline to seek U.S. Supreme Court review, or would simply commute Medellin's sentence on this or related issues - as Oklahoma did in the case of Osbaldo Torres. In this instance, it is unlikely that a meaningful review of the international law issues by the Supreme Court would follow.

Medellin's Larger Context: The Role of Treaties in American Law

Regardless of which avenue the case will follow now, the Supreme Court's per curiam dismissal in Medellin is merely the latest - not the last - chapter in the saga of the VCCR and its relationship with American law.

Given the centrality of reciprocity in international affairs, a victory for Medellin would also mean a victory for the many U.S. nationals arrested abroad ever year who depend on the simple, yet exquisitely important, right to contact the American consulate at the time of their arrest. Already, by disregarding foreign nationals' VCCR rights, the U.S. has needlessly placed its citizens at risk.

Hopefully, as the Medellin matter plays out, this will change.