Let’s drill down a bit to examine what happened last night, when the Supreme Court issued a per curium opinion denying Jose Medellin’s request for a stay of execution. Four justices dissented from the opinion. Medellin, whose appointment with the needle was delayed while the high court deliberated, was put to death at approximately 10 p.m., Central Time.
Medellin applied for a stay to Justice Antonin Scalia, who referred the matter to the entire court. Five votes were needed to issue a stay, and apparently there were only four. Medellin’s request was based on the fact that Congress was working to implement a decision by the International Court of Justice, an arm of the United Nations, mandating that Mexican-born defendants like Medellin are given the right to consult with the Mexican government upon their arrest and that his, and the convictions of 50 other Mexicans on death row in American, must be reviewed. That right comes as a result of a treaty, the Vienna Convention, to which the United States is a signatory.
In its unsigned opinion, the court’s majority said Congress had had more than enough time to implement the court’s 2004 decision. It also, interestingly, pointed to the lack of objection to Medellin’s execution by the Justice Department, even though the State Department and several members of Congress urged Texas to postpone Medellin’s execution, as a reason to deny the stay.
Most important, it focused on whether Medellin’s defense had been compromised by Texas’ failure to allow him to consult with Mexican authorities, rather than any harm the United States may suffer by not living up its treaty obligations:
The beginning premise for any stay, and indeed for the assumption that Congress or the legislature might seek to intervene in this suit, must be that petitioner’s confession was obtained unlawfully. This is highly unlikely as a matter of domestic or international law. Other arguments seeking to establish that a violation of the Convention constitutes grounds for showing the invalidity of the state court judgment, for instance because counsel was inadequate, are also insubstantial, for the reasons noted in our previous opinion.
The Department of Justice of the United States is well aware of these proceedings and has not chosen to seek our intervention. Its silence is no surprise: The United States has not wavered in its position that petitioner was not prejudiced by his lack of consular access.
But Justice John Paul Stevens, who was part of the court’s majority opinion last term that held that President Bush had no authority to order Texas officials to comply with the international court’s judgment, saw things in a more pragmatic light. He wrote that because Texas had had made no effort to deal with the international implications of the U.S. ignoring its treaty obligations, the court should delay Medellin’s execution until the views of the U.S. Solicitor General, Gregory Garre, could be heard. (He is part of the Justice Department, however, suggesting that the Michael Mukasey-led department could have made its views known had it wished.):
Given these stakes and given that [Medellin] has been under a death sentence for 14 years, waiting a short time to guarantee that the views of the Executive have been given respectful consideration is only prudent. Balancing the honor of the Nation against the modest burden of a short delay to ensure that the breach is unavoidable convinces me that the application for a stay should be granted.
The strongest-worded dissent, however, came from Justice Stephen Breyer, who was also in the minority in the Medellin decision last term. He said the U.S would violating its treaty obligations by executing Medellin and accused the majority of the case like it was just another last-minute death penalty appeal instead of a complex matter involving international and domestic law:
[T]o permit this execution to proceed forthwith places the United States irremediably in violation of international law and breaks our treaty promises.
[T]he President of the United States has emphasized the importance of carrying out our treaty-based obligations in this case; this fact, along with the President’s responsibility for foreign affairs, makes the Executive’s views of the matter pertinent.
What is the takeaway? You have a majority committed to the restrained use of federal judicial power in the absence of clear legislative or constitutional authority. It focused on the failure of institutions to act properly, be they Congress or the Bush administration, so as to unequivocally protect its legal and international rights and obligations.
Then you have a dissent that is focused on the more real-world, big-picture implications, shot through with a dose of pragmatism: In other words, what’s the hurry? Why not wait until this tangled web of competing rights is sorted out? Breyer’s dissent frequently suggests that members of Congress may not have realized the need for legislation executing the provisions of the Vienna Convention until just recently. But I would submit that Scalia and others would find no basis for latitude in that argument.