Medellin . . . Still Waiting

by Duncan Hollis

It’s now been five months since the Court heard oral argument in Medellin v. Texas and yet Medellin is still waiting to learn his fate. There’s already been much speculation about where the Court will go, some favorable to Texas’ argument that the President lacked the power to direct Texas’ court system to review and reconsider Medellin’s conviction and sentence in light of the failure of consular notification. Others think that the Presidential power arguments made by the United States as amicus will provide enough votes to require further action by Texas’ judiciary. At the same time, none of the prognosticators seem to think that the Court will favor Medellin’s own front-line argument that U.S. treaty obligations under the Vienna Convention on Consular Relations (VCCR), the VCCR Optional Protocol, and the UN Charter warrant direct judicial enforcement.

The merits of the argument aside, I’m now wondering as another Tuesday has passed without an opinion whether we can read anything into the Court’s delay? In other words, for those of you who are better Supreme Court prognosticators than I, does the delay in the Court’s opinion suggest an outcome that will be more favorable to one side, or is it simply a sign of a Court occupied with other things?

I expect we here at Opinio Juris will have a lot to say when the Court does issue its opinion, even if we have to wait till June for an answer. For now, I’m going to go out on a limb and predict a 5-4 victory for Medellin and the United States on the narrow ground that the combination of presidential power in execution of underlying treaty obligations will be (barely) enough to overcome Texas’ objections. But I’m sure others have different predictions. Feel free to weigh in on the timing issue or your own prediction in the comments.

2 Responses

  1. The Chief or Breyer is writing the lead opinion.

  2. Probably Roberts, since he also wrote Sanchez-Llamas. I don’t have high hopes for 5-4 in favor of Medellin, based on Kennedy’s comments in the oral arguments. My guess is 5-4 the other way. I’ll also prognosticate that they will decide that while the ICJ may have the power to find the US in violation of the treaty or even render a judgment in Mexico’s favor, that they don’t have the power to order the US to interpret the law in a certain way or order any sort of equitable relief. Further, and perhaps under a separate set of concurrences including maybe Souter and Breyer, they will find that the President’s determination does not carry any weight here, since it relates to a purely domestic issue. The argument will be that if the President believes that our international obligations under a treaty require modification of Texas’ procedural rules, that will at a minimum require congressional action as well as the potential for (domestic) judicial review.

    Just a guess.

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