by Ted Cruz
That sounded good. But the bad news, Paul told me, is that the president had just signed an order—a two-page “memorandum”—that purported to order the Texas state courts to obey the World Court anyway. Not because the treaties required it—to the contrary, DOJ agreed that they did not. But out of international “comity,” our desire to make our allies happier.
Paul argued that I should be very happy with this outcome because, he said, the virtue of this novel theory that Justice was putting forward was that the president kept his finger on the trigger. Under this theory, Paul said, the president gets to decide when to use this new presidential power to order the state courts to obey foreign tribunals.
My response to Paul was twofold. I said that, number one, that doesn’t give me a whole lot of comfort, given how the power is being exercised today, with the Department of Justice supporting a vicious child rapist and murderer. But I said, number two, “Paul, there came a pharaoh who knew not Joseph and his children.” Even if I were to agree with you, I told Paul, that George W. Bush’s having the power to decide if and when to exercise this authority over state court systems might be OK, what about the next president? And the next president? And the next president? No president, I told Paul, either has or ought to have that authority.
Nonetheless, that’s the position the George W. Bush administration took.
The first time I argued the case, we won 5–4. But our victory was on a narrow, technical basis. Justice O’Connor, the swing justice appointed by President Reagan who had been pivotal in so many cases over her three decades on the Court, voted against us. But, miraculously, Justice Ruth Bader Ginsburg voted with us, and, by a 5–4 ruling, the Court essentially punted the case and concluded that Medellín should have raised his claim in the state appellate court before he raised it in the federal court.
The case then took a two-year detour, back to the state courts, and in 2007 it returned once again to the U.S. Supreme Court. At that point, Chief Justice Rehnquist had passed away and had been replaced by Chief Justice Roberts. And Justice O’Connor had retired and been replaced by Justice Alito.
The second time I argued the case before the Supreme Court, the United States argued squarely against us. Indeed, Texas found itself in an unusual place. Arrayed against us were the World Court, the United Nations, ninety separate foreign nations (which together filed an amicus brief against us), and the president of the United States. And that president, of course, was not only a Republican, but a Texan with whom I had worked closely and on whose 2000 presidential campaign I had met my wife, Heidi. As we stood against this legal assault, most observers thought we would lose.
Returning to Sun Tzu’s maxim that every battle is won by choosing the terrain on which it will be fought, I believe the most important issue in any case is framing the narrative. Any time I argued a case before the U.S. Supreme Court or before any other court, I spent hours and hours thinking about how to frame the central issue: what the judge or justice, when he or she went home that evening, would say to his six-year-old grandson who asked, “What did you do today, papa?”
I wanted to own that next sentence. If you can frame the narrative—if you can explain what the case is all about on terrain that will favor your position—then much more often than not, you will win. That holds true in law, politics, business, or life.
In this case, Medellín’s narrative was not difficult to follow. Medellín wished for the question to be, “Can Texas flout the treaty obligations of the United States, the laws of the United States, and the president of the United States? And by the way, you know how Texas is about the death penalty.…”
If that’s the question—can Texas defy international treaties?—then we held a losing position. If our whole case depended on getting Justice Anthony Kennedy’s swing vote on the merits, I didn’t want that to be the central question.
Most litigants in my position would have defended Medellín as a federalism case. They would have argued that the World Court’s order and the president’s order violated the sovereign authority of the states. The problem with that defense is that it played right into Medellín’s narrative. If this is a federalism case, then it’s easy for them to portray Texas as a rogue state defying America’s treaty commitments.
So instead, I decided to shift the narrative of the case and to focus on whether the World Court or the president could violate U.S. sovereignty. I framed it as a separation of powers case. Indeed, the opening line of the “summary of argument” section of my Supreme Court brief was: “This is a separation of powers case.” The summary continued: “It implicates every axis of the structural limitations on government: president vis-à-vis Congress, president vis-à-vis the Supreme Court, international law vis-à-vis domestic law, federal law vis-à-vis the states, and, with a Möbius twist, president vis-à-vis the state judiciary.”
Because we argued it as a separation of powers case, the first argument in our brief was about how the president’s “memorandum” impermissibly intruded on the power of Congress. We argued that the president didn’t have the authority to do this on his own. Instead, he needed the authority of Congress, either through a law passed by Congress and signed by the president or through a treaty signed by the president and ratified by the Senate, which only then could have the force of law in our justice system.
The second argument we made is that the presidential memorandum impermissibly intruded on the authority of the judiciary—a separation of powers argument about protecting the Supreme Court’s own authority. We argued that the Supreme Court had previously concluded that the World Court’s decision was not independently enforceable in U.S. courts, and the president didn’t have the unilateral authority to change that Supreme Court determination.
This second argument gave me the opportunity to argue something before the Supreme Court that is exceptionally rare for an oral advocate: to argue for the core holding of Marbury v. Madison, one of the foundational cases of the Supreme Court in the early nineteenth century. In Marbury, Chief Justice John Marshall famously wrote—and I got to argue at oral argument—that it is “emphatically the duty of the Judicial Department to say what the law is.”
It was only third in our brief, and very much as a tertiary concern, that we raised the federalism issue. Namely, that the presidential memorandum impermissibly intrudes on the authority of the states. But we directed the overwhelming majority of our time and force to defending the authority, under the Constitution, of Congress and the federal judiciary against presidential usurpation.
In defending the case, we also tried to assemble an unusual collection of allies. I asked my former boss Chuck Cooper, who had led the Office of Legal Counsel in the Reagan Justice Department and was considered one of the most vigorous defenders of presidential authority, to author a brief on behalf of former high-ranking officials at the Department of Justice. I asked Chuck if he would argue against the authority of the president to unilaterally bind the state courts. Chuck’s willingness to take such a position, let alone the compelling brief that he crafted, conveyed a powerful message to those Supreme Court justices who might otherwise have been amenable to legal arguments for strong presidential authority.
I also sought out my old adversary in Van Orden, Erwin Chemerinsky, to join a separate brief of constitutional and international law scholars that also argued against the presidential assertion of power. A number of scholars joined—including not only Erwin, but also John Yoo, a former Supreme Court clerk for Clarence Thomas and now a professor of law, who had served in the Bush Justice Department and was widely considered the most vigorous academic proponent of strong presidential power.
To unify Erwin Chemerinsky and John Yoo on the same brief before the U.S. Supreme Court was no small feat. To get their support, I tried to pose hypotheticals of how such an unprecedented power might be abused by a subsequent president. To John, I had asked, “How do you think a President Hillary Clinton might use such a power?” To Erwin, I posed a different hypothetical,
trying to conjure up the most terrifying specter he could imagine. I asked, “How do you think a President Dick Cheney would use such a power?” Each shuddered at the prospect.
Importantly, the Bush administration was not arguing that it was bound by treaties to take the position it did. Indeed, the Bush administration explicitly conceded that nothing in the treaties actually required it to cede to the World Court jurisdiction over our justice system. Instead, the Bush administration argued for what it admitted was an “unprecedented” authority—for the president, as a matter of sheer comity, to decide to bind the state courts anyway. Their argument boiled down to: any time the president believed it would make our allies happier, as a matter of foreign policy, the president could disregard state laws that our allies happened to disagree with.
To the conservatives joining this brief of legal scholars supporting us, I asked, “What might happen if a President Hillary Clinton decides that the marriage laws of the United States are politically inconvenient and that comity abroad would be furthered by setting them aside? Could Hillary Clinton do so? Or how about the death penalty laws we have? Most of our allies have long since abolished the death penalty, and there is no doubt a liberal president would earn hosannas for trying to do the same in America. Does the president need to try to pass a law through Congress to accomplish that, or can the president simply write a two-page memo that sets aside those state laws?”
To the liberals joining this brief of legal scholars supporting us, I asked, “If the president has this authority, what would stop a President Dick Cheney from setting aside California’s environmental laws—which, after all, some of our allies find costly and inconvenient? Or perhaps setting aside states’ punitive damages laws, which foreign companies certainly don’t like paying if a jury verdict comes out against them?”
If the Bush administration was right that, in the exercise of foreign policy, the president could set aside inconvenient state laws, that had profound implications. And it had profound implications for everyone, no matter what someone might believe as a matter of public policy.
The Supreme Court oral argument in Medellín v. Texas was vigorously contested, and it featured at least one unusual twist. Now, many envision Supreme Court arguments as moments of soaring oratory—as advocates arguing passionately like Clarence Darrow or Dr. Martin Luther King Jr. But Supreme Court arguments are better thought of as active combat. One of the first things a lawyer notices before arguing before the Supreme Court is just how small the courtroom is. Although the gold-inlaid ceilings seem to extend high up into the heavens, the courtroom itself is remarkable for its intimacy. The oral advocate stands at the podium just a few feet away from the justices’ bench. For decades, the bench was straight, with nine Justices sitting in a row before the advocate. Then, in January 1972, then-Chief Justice Warren Burger changed the bench so that the right and left sides of the bench are bent forward, almost encircling the advocate. When you argue before the Court, the justices are so close that you can practically reach out and shake the chief justice’s hand.
Supreme Court oral arguments typically last one hour: thirty minutes for each side. Every argument begins the same way: “Mr. Chief Justice, and may it please the Court.” But instead of soaring oration, an advocate is typically lucky if he or she even gets a few sentences out. In any hot or contested case, the justices will fire questions relentlessly. (In 2019, the Court changed its practice to allow advocates two minutes of uninterrupted argument at the outset, followed by twenty-eight minutes of merciless questioning.)
The justices’ questions are not typically efforts to discover new information, whether factual or legal. Going into the argument in any close case, there are usually three or four justices who have made up their minds on one side, three or four justices who have made up their minds on the other side, and two or three justices who might be persuadable in the middle. The justices themselves almost never discuss a given case before oral argument. In the vast majority of cases, they haven’t spoken a word to each other about the case before ascending the bench for oral argument. So the oral argument is typically the first time the justices discuss the case with each other. The questions are the vehicle by which they do so.
Typically, a justice who disagrees with your position will fire a question at you not with the purpose of discovering the answer, but with the purpose of demonstrating that your answer is so untenable or imbecilic that the swing justices couldn’t possibly agree with your position. What makes arguing before the Supreme Court so invigorating is that these questions can often be among the first in a string of questions designed to lead you down a slippery slope. That slippery slope, inevitably, might lead you to an outcome that you couldn’t possibly defend. And so an oral advocate has to respond immediately, and in a fraction of a second anticipate where the justice is going with the line of questioning and frame his answers in a way that he doesn’t drive away the swing votes needed to win the case. It’s unbelievably fast, and the adrenaline flows.
Rarely does an advocate get more than a sentence or two to respond to a question before another justice jumps in with yet another question. And the justices who agree with your position typically don’t think you’re arguing it the best way; they’ll often ask “friendly” questions like, “Counsel, don’t you really mean to say such and such?” Again, they are trying to argue through you to get to the swing justices who might be persuadable.
In the Medellín argument, in response to a question from Justice Stephen Breyer, I responded that there are “six separate reasons” why the decision of the World Court is not enforceable and binding upon the U.S. justice system. As I was working through the first reason, amidst a lengthy exchange primarily with Justice Breyer, Justice Kennedy interjected with a separate question. But at that point, Justice John Paul Stevens—the lion of the left, a small Midwestern man, unfailingly polite, always wearing a bow tie, with a brilliant mind and always the most dangerous of the liberals when it came to hostile questioning—interrupted. Justice Stevens stated: “It’s critical to me to understand the effect of the judgment, and you said there are six reasons why it’s not an ordinary judgment. I really would like to hear what those reasons are… without interruption from all of my colleagues.”
Laughter engulfed the courtroom. A justice’s asking to hear in full an advocate’s line of argumentation, as bluntly and characteristically politely as Justice Stevens had requested it, is something that had never happened to me before at the Court, and it has not happened since. The other justices relented, for a few moments, and they allowed me the opportunity to lay out all six of the arguments I had for why the decision of the World Court was not enforceable and binding upon the U.S. justice system.
Ultimately when the decision came down, the Supreme Court agreed with us. Texas won, 6–3. The opinion was authored by Chief Justice Roberts, and it agreed with Texas across the board. It struck down the World Court’s assertion of authority over the U.S. justice system, and it struck down the president’s order as exceeding his authority under the Constitution.
Texas had argued that no foreign court has the authority to bind the American justice system and that no president, Republican or Democrat, has the constitutional authority to give away U.S. sovereignty. And the Supreme Court agreed.
Not only did we win the support of the more conservative members of the Court, but we also won the vote of Justice Kennedy and even Justice Stevens, the leader of the Court’s liberal wing who had requested to hear my full line of argumentation during oral argument and who separately concurred with Chief Justice Roberts’s majority opinion.
The stakes in that case were enormous. As legal scholar Ilya Shapiro put it at the time, “Medellín was a significant victory for national sovereignty and democratic legitimacy.”
Medellín was decided in 2008—twelve years ago. We prevailed 6–3, but Justice Stevens has since been replaced by Justice Elena Kagan. And, although she has not yet squarely faced the question, there is little
reason to believe Justice Kagan would vote differently than the three dissenters.
On August 5, 2008, José Ernesto Medellín was put to death at the Texas State Penitentiary at Huntsville. Medellín went to meet his Maker and face judgment for the unspeakable crimes he committed fifteen years earlier against two teenage girls.
On the day I argued the case, I stood on the steps of the Supreme Court consoling the parents of one of those girls. The pain was etched on their faces; they had gone through seemingly endless litigation, reliving over and over again the horror of their daughter’s last night. My heart grieved for them—as a parent, I could only imagine their soul-wrenching agony. And yet, in Medellín, the dissenting justices were willing to extend those proceedings for many more years.
The case exposed a massive and far-reaching divide on the Court between those justices who would uphold American sovereignty and those justices willing to cede the ability to bind our justice system to the World Court and the United Nations, willing to allow the president the power to undermine our justice system and the rule of law.
On that fundamental issue, with the Court today, in all likelihood, we’re just one vote away.
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As with virtually every other policy matter, on questions of national sovereignty and nationalism versus transnationalism, Democrats and the broader political left today have only become more radical.
The Obama administration chomped at the bit to empower the unaccountable mandarins working at transnational institutions at the expense of our own national sovereignty. Time and time again, Obama, alongside Secretaries of State Hillary Clinton and John Kerry, worked to elevate undemocratic institutions such as the United Nations. As the UN and other faceless bureaucracies from foreign nations were elevated, Obama concurrently diminished the capacity of the American people to make our own decisions about the future of our own nation through our elected officials.