Transcript Supreme Court argument
It's here, in pdf. Argument centers around a treaty requirement that consulates be notified if their nationals are arrested, an important consideration being the power of the International Court of Justice to make a ruling, and how much that ruling obliges US courts to follow it in these circumstances (which I don't understand, but apparently the president did something to make it arguably binding).
As usual, it was less an argument than a grilling. Counsel for the petitioner seems rather underprepared. Watch the dynamics. CJ Roberts pins him on a hypothetical (if the ICJ not only made a finding, but ordered the violators imprisoned, would that also bind US courts?). The hypothetical interests Kennedy, whom Roberts is likely courting as a swing vote. The attorney can't come up with an answer, but Ginsburg tries a "save" by suggesting one. Again he gets stuck, and Breyer tries for a save. Alito comes in, and Kennedy and Roberts go back to tag-teaming him.
Mexico sued the US in the ICJ over 51 Mexican murderers on Death Row who did not get consular assistance. The US foolishly agreed to the case taking place, which resulted in a group of European jurists, shockingly, ruling against the US and ordering that these 51 should have their cases 'reconsidered'. The US promptly withdrew from that aspect of the treaty, so these circumstances only (and even this is dubious since they weren't actually parties to the lawsuit) apply to these 51.
However in the interests of diplomatic relations Bush ordered that the states comply with the ruling. Texas (with 28 other states) asserts that the President does not have the power to just order the state courts to ignore their internal procedural rules, and indeed the federal procedural rules, and hold a new hearing - in this case because Medellin did not object to the lack of consular access until after he was sentenced. [Indeed since he had been in the US most of his sorry excuse for a life its not clear what benefit the Mexican lawyers would have yielded over what anyone knows from watching Law and Order!]
The ruling is going to go all over the place I suspect, with partial concurrences and dissents and probably a plurality decision.
The terrifying thing about the transcript is the way Breyer is so earnestly admiringly excited by all this international law (see his questions about the 'Brussels Court / EU Court'*) without for one second appearing to question whether such notions are compatible with the US Constitution. He sees them as the future and that is all that matters. See his dissent in Printz for something similarly awful.
*As it happens its not called by either name and its not in Brussels, but who cares about specifics when its the wave of the future!
Posted by: Gildas at October 11, 2007 05:34 PM
I can't help but wonder, in this regard, what will happen down the road. If law enforcement are not allowed to ask about immigration status or citizenship, how are they to know whether to offer consular access? Will it be considered a violation of political correctness to offer consular access to a dark-skinned individual who speaks Spanish?
Posted by: MichigammeDave at October 13, 2007 06:08 AM
"Will it be considered a violation of political correctness to offer consular access to a dark-skinned individual who speaks Spanish?"
That would be racial profiling...
Posted by: Jim at October 13, 2007 05:34 PM