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Tony Mauro

Legal Times

10-11-2007

In a sometimes chaotic oral argument Wednesday that exceeded the usual time limits, the Supreme Court struggled to sort out a death penalty case that pits the state of Texas against its former governor, President George W. Bush, in a battle over states' rights and the scope of international treaties.

The argument in Medellin v. Texas, scheduled for one hour, ended up lasting an hour and 26 minutes, with justices asking a total of 176 questions. All three lawyers addressing the Court were allowed to blow past the red lights on the podium that signal the end of their allotted time and usually force advocates to end their arguments in mid-sentence, if not mid-word.

Justices were so aggressively inquisitive that at one point Justice John Paul Stevens asked meekly if the lawyer before him could be allowed to answer his question "without interruption by all of my colleagues."

The case before the justices has been an intellectual cause celebre in legal circles for two years, ever since Bush issued a memorandum that ordered Texas courts to heed a ruling by the International Court of Justice -- known as the World Court -- to reopen the cases of 51 Mexican nationals convicted of crimes in U.S. courts. In each case, the international tribunal had found that the defendants were not told by police upon arrest that they had the right to contact their home nation's consulate for legal assistance -- a right established in a 1963 treaty signed and ratified by the United States.

But the Texas Court of Criminal Appeals defied the Bush directive, ruling that the president did not have the authority under the Constitution to order states to comply with an international court decision.

Convicted murderer José Ernesto Medellin, one of the Mexican nationals covered by the World Court ruling, appealed to the high court. Among the oddities of the case -- in addition to the state of Texas thumbing its nose at its favorite son -- was that the Bush administration argued on the side of a convicted murderer, and human rights groups were applauding Bush, their usual nemesis, for exercising his executive power to vindicate the treaty rights of foreign nationals.

By the same token, it appeared that the Court's conservative wing -- which recoils from the notion of foreign courts holding sway inside U.S. borders -- was deeply skeptical of Bush's power to enforce the World Court order against reluctant states.

As the argument unfolded, it appeared clear that the justices were mainly worried about where Bush's order left the Supreme Court itself -- and less interested in the array of other separation of powers issues in the case.

Many of their questions seemed aimed at protecting, not the power of the president or the sovereignty of Texas, but the authority of the federal judiciary. Can the World Court ruling, and Bush's order enforcing it, pre-empt the Court's traditional role in interpreting the Constitution, federal laws and treaties?

"I’m rather jealous of that power," Justice Antonin Scalia said at one point. "I think it belongs in this court."

Early on, Chief Justice John Roberts Jr. posited a hypothetical in which the World Court ruling also directed Texas to jail the police officers who failed to alert the foreign nationals of their consular rights -- a penalty that would not be permitted under domestic law. "We would have no basis for reviewing that judgment?" he asked skeptically.

New York lawyer Donald Donovan, who represented Medellin, struggled to answer the question after repeated attempts by Roberts and by Justice Anthony Kennedy to get him to answer. Justice Samuel Alito Jr. made the hypothetical even starker: what if the World Court ordered Texas to dismiss the murder charges altogether?

Donovan seemed besieged by the flood of questions that followed, and as his 20 minutes wound down, Roberts took the rare step of giving him an extra five minutes -- and guaranteeing Donovan five more minutes of rebuttal time. The extra time did not seem to help.

Solicitor General Paul Clement also took heavy fire as he defended the president’s power, at one point making a rare confession to Roberts that "I'm stumbling with that question."

Texas Solicitor General R. Ted Cruz seemed to fare better as he defended his state's defiance of the Bush order.

Soon after Cruz began, Justice Stephen Breyer took out his pocket copy of the Constitution and read from Article VI, which says that treaties like federal laws, are "the law of the land; and the judges in every state shall be bound thereby, any thing in the Constitutions or Laws of any state to the contrary notwithstanding." Breyer added, "I guess it means including Texas."

Breyer's questioning, one of the few times when a justice seemed sympathetic with the Bush order, did not faze Cruz.

Texas, Cruz said, does not dispute that the Constitution, laws and treaties "are the supreme law of the land. And Texas statutes must give way to any of these three." Cruz paused and added, "The president's memorandum is none of these three."