Monday, May 23, 2005

Medellin: So Who Won?

The Supreme Court's disposition of Medellin is here. The actual six page opinion is quite short, but the interesting part will be the concurrence by Justice Ginsburg (joined by Justice Scalia) and the dissent by Justice O'Connor (joined by Justices Stevens, Souter, and Breyer). I will try to read the tea leaves of this rather unusual coalition later(UPDATE: My thoughts are posted here), but for now, I attempt to answer the natural question to ask for those folks following Medellin: who won?

As anyone who has followed Medellin here will recall, the case involved complex questions of federalism, separation of powers, international law, and habeas jurisdiction. It attracted nearly 20 amicus briefs from a wide variety of groups from around the world. It was the very first Supreme Court case to directly consider the domestic enforceability of an international tribunal judgment involving the international obligations of the U.S. government.

And yet, the Court "DIGged" (dismissed, certiorari being improvidently granted) this potentially momentous case, which essentially means they are saying, as a formal matter, that they should not have taken the case in the first place. (For my early semi-correct predictions on dispositions, see here). Moreover, the Fifth Circuit's lower court decision denying Medellin federal habeas appellate jurisdiction for his treaty-based claim has been upheld. This is essentially what Texas wanted in the first place, so in this view, Texas "won" this case. Moreover, the Court did not grant Medellin's rather unusual request for a stay of the Supreme Court proceedings, so Texas "won" here as well.

On the other hand, the Court's opinion "DIGging" the case almost certainly relied in part on the President's unusual intervention here issuing an order preempting inconsistent state law in order to implement a World Court judgment. Medellin has already filed his new appeal in state court, based on the President's order, and he should have a decent chance of success of winning a new hearing based on his treaty claims. In fact, my original reaction was that the President's order should give Medellin a clear victory, but Texas is going to fight this order and they might make some headway. In any event, Medellin has "won" in a somewhat limited sense. He did not overturn the Fifth Circuit opinion, but he did strongly improve his chances of winning the case in Texas by forcing the President to issue the order.

In this sense, given where Medellin started, he has made some real progress in advancing his case. The argument that the federal courts should directly enforce an international court order was always going to be difficult to win, although it was the most interesting one. The President's order now transforms this case into more of a garden-variety federalism/separation of powers case. This may dismay internationalists who want to create precedents for judicial incorporation of international court judgments, but it should make Medellin's task a lot easier. Instead of attempting to convince Texas judges to follow the judgment of 15 judges in the Hague, they can simply wave President Bush's order at them. It is still no slam dunk, but it is certainly better than the desperation three pointer at the buzzer that Medellin faced just a year ago.

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