Justice Stevens Almost Gets It Right

In the beginning of his concurrence in Medellin, Justice Stevens reads Article 94 not to require the Texas state courts to take steps to ensure that the U.S. complys with the ICJ judgment. I disagree with his interpretation of “undertakes to comply,” but he’s almost convinced me that it’s a close question, at least with respect to whether the treaty (plus the Supremacy Clause) imposes an obligation on the state court to entertain a habeas petition that state law would otherwise foreclose.

In any event, and more to the point, Justice Stevens then includes (page 4-5) a remarkable paragraph that in my view gets right to the heart of the matter, which is not whether the ICJ judgment is “enforceable in court,” but instead whether the State of Texas as a whole has a constitutional obligation to see to it that the ICJ judgment is honored:

Under the express terms of the Supremacy Clause, the United States’ obligation to “undertak[e] to comply” with the ICJ’s decision falls on each of the States as well as the Federal Government. One consequence of our form of government is that sometimes States must shoulder the primary responsibility for protecting the honor and integrity of the Nation. Texas’ duty in this respect is all the greater since it was Texas that—by failing to provide consular notice in accordance with the Vienna Convention—ensnared the United States in the current controversy. Having already put the Nation in breach of one treaty, it is now up to Texas to prevent the breach of another.

OK, so Texas (as well as the federal government) has a constitutional obligation to prevent the U.S. from breaching Article 94. I agree. And if Texas were to execute one of the 51 defendants before they were afforded “review and reconsideration” of their sentences by someone, Texas would then cause the U.S. to breach Article 94, which Texas may not do.

Having read this paragraph, one might expect Justice Stevens to then conclude that, even if there is no way (absent federal statute) to judicially enforce this obligation against Texas, nevertheless Texas is constitutionally required to do the right thing.

But for some reason, Justice Stevens pulls his punches at the last minute: Instead of writing that “The Court’s judgment, which I join, does not change the fact that the State of Texas is required to take appropriate action to prevent a breach,” Stevens writes that “The Court’s judgment, which I join, does not foreclose further appropriate action by the State of Texas.”

As though Texas has a choice in the matter.

Can anyone reconcile this closing sentence with Stevens’s earlier paragraph (quoted above), which (correctly, in my view) speaks of Texas’s constitutional “duty” and “obligation”?