link to: 08:39 [GMT-8]

The Court today evaded an issue that it should have chosen to decide today by DIGging (dismissing as "improvidently granted") the petition in Medellín v. Dretke. The case concerns whether the US courts must respect a World Court ruling regarding the right to consular contact of foreign nationals, and thereby retry a Mexican national convicted in Texas courts without information on his charges (or even arrest) being provided to the Mexican consulate.

On the one hand, I understand perfectly well why the Court chose to do this. The DIG order asserts that new proceedings below provide a possible avenue through which Mr. Medellín can obtain all of the relief as to himself that the question on which the Court granted certiorari. That is, perhaps, true. (What it really implies is that Mr. Medellín's counsel perhaps could have characterized the suit as a class action, although I'm not familiar enough with Texas procedure to know whether that would have been possible; there's solid case law that mooting the named class representative's own claim may not bar proceding on the class questions.) However, the "real" reason is undoubtedly a desire to avoid further entanglement in the burgeoning controversy over the Court's use of non-US law in its decisionmaking. In other words, unlike most DIGs, it really is about the "improvident" (unwise) grant of the petition—not unwise in the legal sense, but unwise in the political sense. Prudentially, this would involve the Court getting into the charged political atmosphere of international criticism of the US death-penalty system. I think Justice Blackmun (and Scott Turow) had it right: No matter how much I, as an individual, believe that a particular case cries out for the death penalty, the machinery of the death penalty system itself is so broken, so inherently incapable of reaching just results in which we can have absolute confidence, that it needs to be junked. If that means doing so by blaming the durned furriners, so be it. However, in the current political environment—especially in light of the firestorm following Lawrence—I can understand the Court being a bit gun-shy on stepping once more into the breach… with an almost certain vacancy at its apex coming in the next 45 days, too.

Justices Ginsburg and Scalia jointly proposed that instead of DIGging the matter, thereby taking it off the Court's docket, the Court should instead stay briefing on and consideration of the matter, which has both the virtues and the defects of any compromise solution. Its main virtue is that it keeps the lower courts on notice that they're being watched, and presumably motivates them to more-thorough-than-usual reasoning (a problem indirectly referred to by the Court regarding the Texas Court of Criminal Appeals's various failures to respect Supreme Court precedent over the last few years). Its main defect is institutional in nature: A new justice, or justice(s), should certainly have the opportunity—if only as a matter of professional courtesy—to have his/her/their voice(s) heard on the petition for certiorari itself before the Court wades into the undertow. Behind all of this is the muddled state of the law on comity (the respect of courts for the judgments of other courts not in the appellate chain), as the looooong yet incomplete string citation at pages 4–5 of the concurrence only begins to indicate. Of course, as a civil procedure geek, I also appreciate the concurrence's accurate assessment of the procedural Gordian knot that must be cut before the Court could reach the actual "controversial" issue.

On the other hand, the procedural Gordian knot of Medellín presents a paradigmatic example of an exception to the mootness doctrine: "capable of repetition yet evading review." Cf. Murphy v. Hunt, 455 U.S. 478 (1982); Ely v. Klahr, 403 U.S. 108 (1971). In Medellín, what we have is a state (and, for that matter, all-too-common federal) policy of narrowly interpreting an arguable treaty obligation to put a thumb on the scales of justice. Part of the problem is that no court with actual jurisdiction to interpret the treaty in a binding fashion has stepped up to do so; every time, on various prudential grounds, courts have found a way to avoid deciding the question. I find Justice O'Connor's dissent in substance persuasive:

The Court dismisses the writ (and terminates federal proceedings) on the basis of speculation: Medellín might obtain relief in new state court proceedings—because of the President's recent memorandum about whose constitutionality the Court remains rightfully agnostic, or he might be unable to secure ultimate relief in federal court—because of questions about whose resolution the Court is likewise, rightfully, undecided. These tentative predictions are not, in my view, reason enough to avoid questions that are as compelling now as they were when we granted a writ of certiorari, and that remain properly before this Court. It seems to me unsound to avoid questions of national importance when they are bound to recur.

Dissent at 1–2 (slip op.). Sometimes evasion of the issue rises to the level of evasion of duty, and there is such a strong duty here—not only concerning the death penalty, but concerning comity—that I think the Court is only deferring the eventual reappearance of this issue. Unless, of course, Medellín is granted clemency or a pardon, escapes, or dies a natural death (or unnatural death other than through the death penalty)—that is, relatively permanently leaves Texas's custody—which is the only true way to moot this case.

Sometimes the greater issues of justice must overcome political prudence, especially at the Court. Medellín seems to me to be one of those cases, as I seriously doubt that further lower-court proceedings will shed any more light on the interlocking issues it presents. In some sense, the DIG represents a flinch in a game of chicken: The Court's awareness of Congressional and neoconservative displeasure with its acceptance of foreign ideas (or, as others put it, mere rumblings of foreign discontent) has made it a bit too eager to avoid creating yet another target for that same displeasure.

More pointedly, deciding not to decide is itself a decision, particularly in the face of a decision below that explicitly holds forth on the applicability of the treaty and ICJ decision.