Texas Rolls the Dice

Lyle Denniston at SCOTUSBlog usefully analyzes Texas’s latest salvo in the ongoing battle over what to do with the Medellin case in the Supreme Court now that the President has sided with Medellin. Somewhat to my surprise, Texas is opposing Medellin’s motion for a stay pending its state court litigation (which was prompted by the President’s executive determination discussed here). But on second thought, this strategy probably makes sense.

Although I suggested that Medellin would probably win his motion for a stay, I wondered at the time whether the Supreme Court would simply dismiss the case completely finding that cert was improvidently granted. After all, if Medellin loses again in the state courts, he can come back to the Supreme Court if and when that happens. In the meantime, there seems little reason for the Court to “stay” the case because the issue at that point would be very different. Rather than resolving whether the Court has jurisdiction and the power to enforce the ICJ judgment, the issue in the future would almost certainly be the effect of the president’s determination that Texas courts should enforce the ICJ judgment.

What does surprise me is that Texas did not respond by asking the Court to dismiss the case on the theory that I just outlined. Instead, it asks for the Court to continue to hear the case. This suggest Texas is quite confident it will win (or at least not lose) in the Court. Texas is right to be confident that it will win a narrow ruling from the Court holding that there is no federal appellate jurisdiction for treaty-based claims. As I suggested earlier, the Court is not likely to stretch the law to allow federal courts to hear a case that the President says he is taking care of.

But there is always the risk that the Court will go crazy and decide (1) that it has jurisdiction; and (2) that it should find itself bound by the ICJ judgment. If that happens, it is game set match, for Medellin. At least Texas can try to challenge the Executive order on federalism grounds. But if it loses here, such a challenge won’t matter much because the Courts will order them to give hearings anyway, whether or not the executive order is effective.