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The Supreme Court on Monday seemed torn over how � and even whether � to decide a key Texas death penalty case that questions whether an international court has the power to order domestic courts to hear new death row appeals. Because of fast-breaking developments in the case, several justices appeared ready to delay their decision or even to dismiss the case of Medellin v. Dretke while conflicting forces at the state, federal, and international level sort out what happens next. “What is the practical thing to do?” Justice Stephen Breyer asked plaintively at one point. Arguments in the case were held against the backdrop of an ongoing debate among the justices and in academia over the proper role of foreign courts and international law in the Supreme Court’s own decision making. That debate was joined in a direct way last year when the International Court of Justice, also known as the World Court, ordered U.S. courts to review the prosecution and sentencing of 51 Mexican nationals on U.S. death rows � including Jose Ernesto Medellin, the plaintiff in the case now before the high court. The World Court determined that, in each case, local law enforcement officials had violated the Vienna Convention on Consular Relations by failing to alert Mexican consular officials of a Mexican national’s arrest. The United States advocated and ratified the convention more than 30 years ago. At first, both the state of Texas and the Bush administration agreed that the World Court ruling has no binding effect on the conduct of U.S. criminal prosecutions. But late last month, the administration informed the Supreme Court that the White House had decided the United States would abide by the treaty and the World Court ruling “by having state courts give effect” to the decision in state court proceedings for Medellin and others affected by it. Separately, to prevent the issue from arising again, the administration also announced that, in the future, it would no longer recognize World Court jurisdiction to enforce the treaty. The Bush administration’s pledge to abide by the treaty led Medellin’s lawyer, Donald Donovan of Debevoise & Plimpton in New York, to ask the Court to pull the case from its docket and await further proceedings at the state level. Along those lines, the Court was told Monday that Medellin’s Texas lawyers over the weekend initiated a state habeas corpus appeal in Texas courts to begin the appeal process hinted at in the Bush statement. Because of that new twist in the case, several justices wondered if the high court should hold open the case pending the resolution of state court proceedings. But Justice Sandra Day O’Connor wondered aloud whether “this Court has ever said, ‘OK, come back next term,’ ” by holding a case open. Chief Justice William Rehnquist also expressed concern that granting a stay would be seen, in effect, as endorsing the government’s view of the case. O’Connor and Breyer, employing an acronym familiar to Court personnel and practitioners, suggested that the best approach might be to “DIG” the case � dismiss it as improvidently granted. Doing so would leave in place the ruling of the U.S. Court of Appeals for the 5th Circuit that denied Medellin’s appeal based on the Vienna Convention issue. Deputy Solicitor General Michael Dreeben offered a variation, urging the Court to rule that Medellin had no right under federal law to a new certificate of appealability on federal constitutional grounds. That would allow the Court to avoid unnecessarily ruling on the “delicate” international issues involved while allowing state proceedings to continue. The procedural dilemmas of the case did not keep some of the justices from voicing views on the substantive issue of the interplay between the World Court ruling and the power and jurisdiction of state and federal courts. Justice Antonin Scalia, the Court’s most vocal opponent of allowing foreign laws and norms to influence Supreme Court decisions, suggested in several questions that he did not think a treaty could “give away” the final authority of the Supreme Court to decide constitutional questions. Justice Anthony Kennedy pointedly asked Donovan, Medellin’s lawyer, whether there was any Court precedent for allowing “an international tribunal in effect to bind this Court.” Donovan invoked the supremacy clause of the Constitution, which says that treaties, along with the Constitution and federal laws, “shall be the supreme law of the land.” But Kennedy was not satisfied. “So you’re telling me you don’t have a case,” he told Donovan. The Bush statement endorsing enforcement of the Vienna Convention at the state level also set up a dispute between the administration and Texas officials who did not appreciate Bush offering to “commandeer” state courts to enforce an international court decision. That dispute was aired briefly during oral argument Monday, when Justice David Souter asked State Solicitor R. Ted Cruz what Texas thought about the Bush statement. Cruz said the statement had raised “significant constitutional problems,” but he did not elaborate. Tony Mauro can be contacted at [email protected].

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