BREYER, J., DISSENTING
MEDELLIN V. TEXAS
554 U. S. ____ (2008)
SUPREME COURT OF THE UNITED STATES
NOS. 06-984 (08A98), 08-5573 (08A99), AND 08-5574
(08A99)
JOSE ERNESTO MEDELLIN
06–984 (08A98)
v.
TEXAS
on application to recall and stay mandate and
for stay
JOSE ERNESTO MEDELLIN
08–5573 (08A99) v.
TEXAS
on application for stay and petition for a writ
of certiorari to the court of criminal appeals of texas
In Re JOSE ERNESTO MEDELLIN
08–5574 (08A99)
on application for stay and on petition for a writ
of habeas corpus
[August 5, 2008]
Justice Breyer, dissenting.
The International Court of
Justice (ICJ) has held that a treaty that the United States has
signed, namely, the Vienna Convention on Consular Relations (Vienna
Convention), Apr. 24, 1963, [1970] 21 U. S. T. 77, T. I. A. S. No.
6820, does not permit execution of this defendant without a further
hearing concerning whether Texas’ violation of the Vienna
Convention’s obligation to notify the defendant of his right to
consult Mexico’s consul constituted harmless error.
Case
Concerning Avena and Other Mexican Nationals (Mex. v.
U.
S.), 2004 I. C. J. 61-64 (Judgment of Mar. 31). The
United States has agreed that the ICJ’s judgments will have
“binding force . . . between the parties and in respect of [a]
particular case.” United Nations Charter, Art. 59, 59 Stat. 1062,
T. S. No. 993 (1945). The President of the United States has
concluded that domestic courts should enforce this particular ICJ
judgment. Memorandum to the Attorney General (Feb. 28, 2005), App.
to Pet. for Cert. in
Medellín v.
Texas, No.
06–984, p. 187a.
In
Medellín v.
Texas, 552 U.
S. ___ (2008) (six to three vote), this Court, while recognizing
that the United States was bound by treaty to follow the ICJ’s
determination as a matter of
international law, held that
that determination did not
automatically bind the courts
of the United States as a matter of
domestic law in the
absence of further congressional legislation.
Id., at ___.
In reaching this conclusion the majority, as well as the dissent,
recognized that, without the further hearing that the ICJ found
necessary, the execution would violate our international treaty
commitments. See
id., at ___.
Petitioner, who is scheduled to be executed
this evening, now asks us to delay the execution in order to give
Congress an opportunity to act to cure the legal defect that the
Court found in
Medellín. In my view, several factors
counsel in favor of delay.
First, since this Court handed
down
Medellín, Mexico has returned to the ICJ requesting
this Nation’s compliance with its international obligations; and
the ICJ has asked that the United States “take all measures
necessary to ensure that [the Mexican nationals] are not executed”
unless and until they “receive review and reconsideration
consistent” with the ICJ’s earlier
Avena decision. See
Request for Interpretation of the Judgment of 31 March 2004 in
the Case Concerning Avena and Other Mexican Nationals (Mex. v.
U. S.), 2008 I. C. J. No. 139, ¶80 (Order of
July 16).
Second, legislation has been
introduced in Congress seeking to provide the legislative approval
necessary to transform our international legal obligations into
binding domestic law. See Avena Case Implementation Act of 2008,
H. R. 6481, 110th Cong., 2d Sess. (2008) (referred to
committee, July 14, 2008).
Third, prior to
Medellín,
Congress may not have understood the legal need for further
legislation of this kind. That fact, along with the approaching
election, means that more than a few days or weeks are likely
necessary for Congress to determine whether to enact the proposed
legislation.
Fourth, to permit this execution to
proceed forthwith places the United States irremediably in
violation of international law and breaks our treaty promises.
Fifth, the 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.
Sixth, different Members of this
Court seem to have very different views of what this case is about.
In my view, the issue in this suit—what the majority describe as
the “beginning premise”—is not whether a confession was unlawfully
obtained from petitioner. Cf.
ante, at . Rather, the
question before us is whether the United States will carry out its
international legal obligation to enforce the decision of the ICJ.
That decision requires a further hearing to determine whether a
conceded violation of the Vienna Convention (Texas’ failure to
inform petitioner of his rights under the Vienna Convention) was or
was not harmless. Nor do I believe the majority is correct insofar
as it implies that Congress has had
four years to consider the
matter. See
ibid. (
“Congress has not
progressed beyond the bare introduction of a bill in the four years
since the ICJ ruling and the four months since our ruling in
Medellín v.
Texas”). To the contrary, until this
Court's decision in
Medellín a few months ago
, a
member of Congress might reasonably have believed there was no need
for legislation because the relevant treaty provisions were
self-executing. It is not realistic to believe Congress could act
to provide the necessary legislative approval in only a few weeks’
time.
In my view, we should seek the views of the
Solicitor General (which may well clarify these matters), and we
should grant a stay of sufficient length for careful consideration
of those views, along with the other briefs and materials filed in
this suit. A sufficient number of Justices having voted to secure
those views (four), it is particularly disappointing that no Member
of the majority has proved willing to provide a courtesy vote for a
stay so that we can consider the Solicitor General’s view once
received. As it is, the request will be mooted by petitioner’s
execution, which execution, as I have said, will place this Nation
in violation of international law.
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