Justice John G. Roberts: A Nation Unto Himself
posted on March 26th, 2008
It’s extremely gratifying to see a Supreme Court ruling in which the majority decision claims to be reining in the extraordinary executive powers that El Presidente has claimed for himself. Which makes it all the more upsetting when that ruling turns out to be a bucket of horse shit.
Normally, I’m a big fan of checks and balances. We all learned in seventh grade social studies that Presidents shouldn’t be allowed to unilaterally make international policy. We learned that the Constitution gives the President the power to sign a treaty, but that only the Senate can ratify that treaty, requiring a 2/3 majority. I’d be really pissed to learn that Dubya was trying to enforce the terms of a treaty that wasn’t ratified by the Senate. That would, as Roberts indicates, be an egregious example of this president exerting executive rights that he doesn’t have. So it came as somewhat of a shock to me, as it will no doubt come as a shock to Justice Roberts, to learn that the United States Senate has indeed ratified the Vienna Convention on Consular Relations, the treaty in question. I can understand why he hasn’t heard about it, though; it only just happened in 1969, a mere 39 years ago. I’m sure he just hasn’t gotten the memo.
I’m not being entirely fair to the Majority decision here. Roberts basically argues that an earlier Supreme Court case, Sanchez-Llamas v. Oregon, held that there was a limit to the recourse a defendant could demand after being denied the right to consular access, and that no decision from the International Court of Justice or memo from the President can change that. At the core of the decision seems to be a discussion of whether the treaty is “self-executing” or not; the executive power stuff is just a smokescreen to, I don’t know, throw dubya-haters like me off the scent. If a treaty is “self-executing”, it immediately becomes federal law when it is ratified, and no further action is required. If not, then it has the same basic effect as a congressional resolution; an intent to be guided by the spirit of the treaty and a promise to enact actual legislation to codify it.
The plaintiff (Jose Medellin, the former criminal defendant and current convicted murderer) argued in his petition that he deserves a new trial because:
- He was never informed of his rights to consular access.
- The International Court of Justice, in the Case Concerning Avena and Other Mexican Nationals, which Mexico brought against the United States, held that Medellin and some 50 or so other criminal defendants had been denied their rights under the Vienna Convention on Consular Relations, and ordered that the United States review those cases to ensure that no damage had been done.
- President Bush also wrote a memo to Texas saying that he deserves a hearing.
The Supreme Court, in this decision, counters those arguments essentially as follows:
- There is a time and a place to raise those concerns, it’s called the Appellate Court, and you didn’t, so it’s too late now (and a memo from Bush is not worth the paper it’s printed on).
- ICJ rulings are not binding federal law, and no other nation on earth has ever treated them as such (and you can shove your stupid memo up your ass).
- Too fucking bad, he’s a douchebag, and we don’t have to listen to him (and did I tell you what you can do with your fucking memo?).
Individually, I don’t really have a problem with any of these reasons; certainly, I don’t want the court to make decisions based on whether or not George W. Bush has weighed in on the subject. But in aggregate, this decision is extremely damaging.
First, the dichotomy Roberts sets up in writing the decision is a false one; we as a nation do not have to choose between bowing to grossly overstepped executive pressure and honoring our treaty obligations. Framing the question as “can the President force a state to retry a convicted murderer”, as the Houston Chronicle has done, is grossly misleading; it isn’t Bush who filed suit with the state of Texas, it is Jose Medellin, the criminal defendant. Bush just sent a memo saying (and I’m paraphrasing) “yeah, we need to do that.”
The second, and far more damaging reason, is that this question of “self executing” is completely out of nowhere. While there has been some discussion about it over the years, we as a nation have been doing business since 1969 as though we are indeed bound by the terms of the treaty. The State Department even advises United States citizens traveling abroad of their rights under the treaty. In September 2007, the Ninth Circuit Court, in a separate case, held that “there is no question that the Vienna Convention [on Consular Relations] is self-executing.” Not “gee, we think it probably should be,” but “there is no question.” And here is where this new decision is most damaging.
In that 9th Circuit case, Cornejo vs. the County of San Diego, the court held that while the treaty is self-executing, it does not allow an individual any standing to seek redress. Medellin, earlier in this case’s life, had also been told that as an individual, he did not have standing, as the treaty provides no rights to individuals, only to nations (which could then protect those individuals). But in this case, the nation of Mexico filed suit in the International Court of Justice (i.e. The Hague) against the United States. That court ruled that the United States had denied consular access to some 50 or so defendants, and needed to review the cases to ensure that no “actual prejudice” was caused in those cases.
The Roberts decision has essentially withdrawn the United States from the Vienna Convention on Consular Relations. Individuals do not have any rights to redress if their treaty rights are violated, and now neither do nations. And yet nobody is going to call him an “activist judge” or accuse him of “legislating from the bench”.
I confess, I find it hard to disagree with any of the arguments, or sympathize with the losing side. Yet we somehow are now signatories to a treaty that we’re no longer at all bound by due to this one ruling, and that terrifies me. This is not the first court case in which criminal defendants have sought their rights under the VCCR. But I guess it will be the last, at least for a while.
This rant filed under: Political
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