10 Oct Instant Analysis of the Medellin Oral Argument Transcripts
can be found here. Lyle Denniston of SCOTUSBlog’s report on the argument can be found here. My reading of the transcript, which is not as thorough as Lyle’s actually reporting on it, suggests that there is substantial hostility to the direct enforceability of ICJ judgments (Scalia, Roberts, Alito) and somewhat less substantial hostility from those same justices to the President’s attempt to implement the judgment.
Two justices who seem important here for their prior judgments on executive power against the states (Ginsburg is skeptical, and Souter has been supportive) seem to signal friendliness toward the direct ICJ judgment enforceability theory and no support for the executive enforcement theory.
There were two arguments that I find most persuasive, but which neither Medellin’s lawyers or the Solicitor General raised. The first is that this is a preemption case akin to the Supreme Court’s recent preemption cases, especially Garamendi. The second is that this is claims-settlement case, and that the President has long held a residue of independent power to settle claims by foreign nationals and to restrict rights and powers of state governments (The SG sort of raised this, but very briefly).
I am certainly no expert on SCOTUS predictions, but it does seem there is a majority against the ICJ enforceability theory (Scalia, Roberts, Alito, Kennedy, Thomas). But there seems to be no majority for the President’s enforceability theory either, at least based on the questions. So maybe Medellin will lose after all? I would be very surprised, but the transcript certainly doesn’t look that good for him.
But there seems to be no majority for the President’s enforceability theory either The way I read it, there is: Breyer, Ginsburg, Souter, Thomas, Alito, and Roberts. The chief opponent to the theory was Scalia (Cruz is a former Scalia clerk), and no one seemed receptive to Scalia’s arguments — I mean questions — except Scalia. Souter did not buy them, noting that a branch that executes or applies the law was needed. Ginsburg noted that Cruz’s argument was unfair to the President (What is a President supposed to do?) and noted that Oklahoma complied with similar memos. Breyer was openly hostile to Cruz’s argument. The questions of Roberts and Alito seemed to be carving out a role for the Supreme Court, which was incompatible with Cruz’s bizarrely inverted Article III argument, yet consistent with the overal positions of Donovan and Clement to the extent they converged in distinguishing the Court’s role here and in Sanchez. Kennedy seemed all by his lonesome on a few of his questions, much as he was in Hein, where he ended up writing a bloated treatise on government speech that no one else joined. I would also note that Cruz received the most questions… Read more »