Chief Justice Prolongs Executive Powers Debate

By Robert Barnes
Washington Post Staff Writer
Thursday, October 11, 2007

When a case involves the power of the judiciary, the authority of the World Court, the role of Congress in enforcing treaties and the ability of states to ignore a direct order from the president, even the nine justices of the Supreme Court need more than an hour.

So Chief Justice John G. Roberts Jr. told the attorneys to keep arguing -- and fellow justices kept pulling out copies of the Constitution and peppering the lawyers with questions -- long after the arguments in a complex case known as Medellin v. Texas were scheduled to come to an end yesterday.

The case began with a horrific rape and murder committed by José Ernesto Medellín and others in 1993. But it has moved far beyond Texas's death row to complicated questions about whether the president or an international court has the power to determine the rights U.S. courts afford criminal defendants.

Roberts was one of several justices who seemed skeptical of the deference owed to the International Court of Justice, also known as the World Court. He asked Medillín's lawyer, Donald F. Donovan: If the Supreme Court thought a World Court ruling preempted federal law, "We would have no authority to review the judgment itself?"

Justice Antonin Scalia agreed, saying he has a constitutional problem with giving an international body such power. "I am rather jealous of that authority," Scalia said. "I don't know on what basis we can allow some international court to decide what is the responsibility of this court, which is the meaning of the United States law."

Medellín, 33, has lived in the United States since he was 3; he speaks and writes English but is still a Mexican national. He was part of a gang that attacked Jennifer Ertman, 14, and Elizabeth Peña, 16, as the girls walked home from a friend's house. The girls were raped and murdered, one of them strangled with her own shoestring.

Medellín signed a waiver of his Miranda right to remain silent and confessed within hours of his arrest. But he was not told of his right to talk to the consulate of his country, guaranteed to those arrested outside their home countries, under the Vienna Convention. Medellín did not raise that right during his trial but did in one of his death penalty appeals.

Mexico, which has no death penalty, went to the International Court of Justice, and it ruled that the death sentences of 51 Mexican nationals in nine states, including Medellín's, receive "review and reconsideration."

The Bush administration first argued against Mexico, then President Bush in 2005 issued a memorandum to the attorney general saying that the United States will "discharge its international obligations . . . by having state courts give effect to the decision" of the World Court.

Bush's home state said no. The Texas Court of Criminal Appeals said Bush's directive exceeded his authority, and to give Medell¿n an additional hearing would violate the state's judicial procedures.

Justices Ruth Bader Ginsburg and Stephen G. Breyer were most supportive of Bush's desire to comply with the guarantees of treaties and the ruling of the international court.

"The United States gave its promise," Ginsburg said. "It voluntarily accepted this jurisdiction. It didn't have to."

Breyer pulled out a copy of the Constitution and read a portion that said state judges must comply with U.S. treaties -- "I guess it means, including Texas."

Solicitor General Paul D. Clement, who joined Medellín's side, distanced himself from the argument that the treaties alone would mean the court must follow the World Court's directive. The president's agreement with the World Court is the "critical element," Clement said.

But Texas Solicitor General R. Ted Cruz said Bush had no authority to issue a memorandum ordering a state court to do something its laws do not authorize -- in this case, another hearing for Medellín.

The lively debate drew in all the justices, save Justice Clarence Thomas, who maintained his customary silence. At one point, the fray grew such that Justice John Paul Stevens asked Cruz to clarify a point -- and then asked colleagues not to interrupt until Cruz finished.

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