On the Importance of Conservative Justices

I've been meaning to write something on Medellin v. Texas, the international law/death penalty case that was handed down yesterday. The decision (PDF) makes clear just how very lucky we are that Chief Justice Roberts made it onto the court, not that he alone should get credit. Still, this was a 6-3 decision with no BS Kennedy concurrence, which means Roberts' opinion is now binding in full on the lower courts. The case has important implications for the War on Terror.

The opinion is everything we've come to expect from Roberts: unambiguous, well-written, and responsive to the dissent. He managed to convince Kennedy, who had previously seemed sympathetic to the treaty supremacy arguments of the liberal justices. Stevens concurred. Breyer, Ginsburg, and Souter dissented.

This case was make-or-break when it comes to the War on Terror prosecutions. It's not mentioned by any of the justices (including the dissent), but the one thing lurking quietly behind the Court's discussion of treaty language and defendant's rights is the Guantanamo Bay appeals. The question in Medellin is whether a relatively obscure treaty, the Optional Protocol Concerning the Compulsory Settlement of Disputes to the Vienna Convention, is binding on domestic courts absent some enabling legislation. It could just as easily have been whether the Geneva Conventions are binding on domestic courts absent some enabling legislation.

The Chief Justice sticks with long-settled principles of law: treaties that are not self-executing do not become "the law of the land" unless Congress enacts legislation to make it so. That's how we get laws in this country: through Congress in a republican fashion, not through the machinations of unelected diplomats. So the question becomes whether the Optional Protocol is self-executing. He concludes, based on the text of the treaty, that it is not. Stevens agrees, though he doesn't like the way the Chief Justice presumes that all treaties are not self-executing.

The dissent, written by Justice Breyer, continues with the liberal attempt to impose international law obligations on domestic institutions without regard for Congress or for long-standing precedent. The argument is superficially persuasive. Breyer writes that the Optional Protocol through the Supremacy Clause ("all Treaties . . . which shall be made . . . under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby.") binds the courts as much as an act of Congress would. The Chief Justice correctly writes that this is true for self-executing treaties, but not those which explicitly or implicitly require legislative action.

Bottom Line: Why do we care?
The Supreme Court ruled in 1950 that the Geneva Convention (III) relative to the Treatment of Prisoners of War is not self-executing. That holding has been binding on the courts for all this time and was upheld by the Court in Hamdan v. Rumsfeld in 2006. That has held the liberal members mostly in check when it comes to the Guantanamo Bay detainee cases. It would have been quite a coup if they had rewritten the law to cause even non-self-executing treaties to impose obligations on state courts.

posted by Gabriel Malor at 11:21 AM

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