by Ted Cruz
Our gamble began to pay off when the Court agreed to hear two cases about the Ten Commandments, both at the same time. One arose in Kentucky, where a host of factors made victory for the state less likely. The other was ours.
For this particular case, I recommended to Attorney General Abbott that he present the oral argument himself. He had not yet argued in front of the Supreme Court, and I told him, “If you’re going to argue a case, this is the right one for you to choose. The issue is incredibly important, and I believe we can win.” He agreed, spent two months holed up in his office preparing, and did a superb job. At the end of the oral argument, the presiding justice—Justice Stevens, rather than Chief Justice Rehnquist, who was ill—did something that I had never seen in any argument before and that I have not seen since: He made a point of complimenting Attorney General Abbott for his particularly excellent oral advocacy.
“General Abbott,” said Justice Stevens to the wheelchair-bound attorney general, “I want to thank you for your argument and also for demonstrating that it’s not necessary to stand at the lectern in order to do a fine job.”
Typically, the biggest cases at the Supreme Court are decided in June, the term’s last month. In 2005, the first twenty-six days of June came and went with no decision in our Ten Commandments case. Finally, on the Court’s last day, June 27, Chief Justice Rehnquist said from his seat at the center of the Court’s bench, “I have the opinion of the court to announce in Van Orden against Perry.”
His voice was weak and gravelly to the point of being almost unrecognizable, a casualty of the cancer that would take his life sixty-eight days later. He could only speak five or six words without pausing and taking a deep breath. But it was important to him to sit on the bench that day and announce his decision in person.
“The Court of Appeals for the Fifth Circuit affirmed the district court’s finding that the monument does not contravene the First Amendment’s Establishment Clause,” he said. “The judgment of the court of appeals is affirmed.”
With those words, the Chief Justice completed a jurisprudential arc that began with his early years on the bench in the 1970s and early 1980s. Back then, as I mentioned earlier, he dissented so frequently that he had earned the nickname the Lone Ranger. Rehnquist, for example, had written a dissent in a 1980 case in which the Court held that displaying the Ten Commandments in a public school is unconstitutional. In that earlier case, he wrote, “The Establishment Clause does not require that the public sector be insulated from all things which may have a religious significance or origin. This Court has recognized that ‘religion has been closely identified with our history and government,’ and that ‘[t]he history of man is inseparable from the history of religion.’ ”
Twenty-five years later, Chief Justice Rehnquist’s opinion in Van Orden made the same argument, sometimes with the exact same words. This time, however, he was writing for the Court’s plurality.
After announcing the Court’s decision in Van Orden, the Chief Justice said that “Justices Scalia and Thomas have filed concurring opinions. Justice Breyer has filed an opinion concurring in the judgment. Justice Stevens has filed a dissenting opinion in which Justice Ginsburg has joined. Justice O’Connor has filed a dissenting opinion. Justice Souter has filed a dissenting opinion in which Justices Stevens and Ginsburg have joined.” He then added, “I did not know we had that many people on our Court.”
The courtroom erupted in laughter. On an issue that evoked strong emotions and that had fractured the Court into six opinions, Chief Justice Rehnquist used humor to bring everyone together. It was a graceful and fitting conclusion for the career of a man who had never wavered in the defense of his principles, but who had always shown kindness and respect to those who disagreed with him.
From both a professional and personal perspective, two elements of the case were particularly rewarding. First, Van Orden vindicated the decision that Attorney General Abbott and I made to encourage the Supreme Court to hear our case, even though we had prevailed in the lower courts. On the same day Van Orden was decided, the Court struck down Kentucky’s display of the Ten Commandments. Its fact pattern presented the state with far more legal obstacles than Texas faced. If the Supreme Court had not heard our case as well, it would have been a dark day for religious liberty.
On a personal level, it meant a great deal to be part of the team litigating a case that allowed Chief Justice Rehnquist to uphold the principles that he had espoused his entire life. He was not just my former boss. He was also my close friend. Our case was the last decision that William Rehnquist ever authored. Just two months later, I joined his other law clerks as pallbearers at his funeral. He was ably succeeded by one of those former clerks, John G. Roberts, but our country had lost one of its greatest jurists.
By any measure the biggest case of my tenure as solicitor general was Medellín v. Texas—the case that led to our phone conversation with White House Counsel Harriet Miers.
Medellín began in 1993 with two innocent girls, fourteen-year-old Jennifer Ertman and sixteen-year-old Elizabeth Pena. The teenagers were walking home in Houston, taking a shortcut through a secluded area in order to make it home by their curfew. They ran into a group of about half a dozen members of the “Black and White” street gang. Elizabeth was grabbed. Jennifer escaped, but when she heard her friend’s screams, she returned to try to help.
For the next hour, Elizabeth and Jennifer were repeatedly raped.
Then they were murdered.
Among the assailants was an illegal immigrant named José Ernesto Medellín.
After Medellín’s arrest, he wrote a four-page, handwritten confession. It may be the most horrifying document I have ever read. In it, a cold, callous Medellín dispassionately described how the gang summarily decided to end Jennifer’s and Elizabeth’s lives. How he joined in their rape. How they stomped on the neck of one girl and strangled her to death with a belt. How they strangled the other girl with a shoelace, Medellín holding one end, his friend the other as they cut into her throat.
The most chilling detail, which will always remain with me: The youngest girl was wearing a Mickey Mouse watch, which he proudly kept as a souvenir.29
Not surprising, José Medellín was convicted and sentenced to death.
A decade later, while Medellín was on death row, the case took an unusual turn. In 2004, the International Court of Justice—the judicial arm of the United Nations, also known as the World Court—issued an unprecedented decision. It ordered the United States to reopen the murder convictions of Medellín and fifty other Mexican nationals. Never before had any international court attempted to directly bind American courts, much less set aside final criminal convictions.
The World Court based its decision on the Vienna Convention, an international treaty that the United States ratified in 1969. The court concluded that the Vienna Convention requires the United States to inform foreigners of their right to contact their consulate if they are arrested in the United States, even if they, like Medellín, have lived in the United States for almost their entire lives. Because Medellín had not been informed of this right by the police who arrested and questioned him, the World Court ordered the United States to provide Medellín with “review and reconsideration” of his conviction and death sentence.
Under U.S. law, the Vienna Convention did not entitle José Medellín to a new trial. Pursuant to ordinary rules of criminal procedure, Medellín had forfeited his right to invoke the Vienna Convention when his lawyers failed to raise the issue in his trial and original appeal. And, more important, only Congress can make the Vienna Convention binding domestic law that is enforceable in American courts, and Congress had chosen not to do so.
None of this mattered to the World Court. It didn’t respect the prerogatives of Congress. It didn’t respect the rules of Texas’s criminal courts. And it certainly didn’t respect the sovereignty of the United States of America.
Unfortunately, as already mentioned, Secretary of State
Condoleezza Rice wanted us to accede to the World Court. Condi is someone I’ve known since the Bush campaign; she’s a friend, and she was Heidi’s boss at the National Security Council in the White House. (In 2004, Heidi had moved from Treasury to the NSC, to serve as the economic director for the Western Hemisphere.) I very much respected Rice’s experience and judgment, but on this question I believe she was wrong.
The State Department wanted President Bush to oppose the final judgment of the Texas criminal justice system, to support the decision of the World Court, and to subject state and federal courts to the authority of the judicial arm of the United Nations, even though every previous president—including Jimmy Carter and Bill Clinton—had rightly taken the position that courts outside the United States cannot bind American courts.
The decision to change course and try to subject Texas courts to the United Nations was in keeping with the prevailing mood in parts of the administration at the beginning of President Bush’s second term: The president had taken a public relations beating for allegedly alienating allies with the Iraq War, and over the objections of hard-liners like Dick Cheney and Donald Rumsfeld, many high-ranking officials appeared determined to make the next four years a “We Love the World” term.
Therefore, several weeks after our unproductive phone call with White House Counsel Harriet Miers, I received a call from President Bush’s solicitor general, Paul Clement.
“Ted,” he said ominously, “are you sitting down?”
“Paul, that’s not a good way to begin a conversation,” I replied, sort of laughing. “I’m worried what’s coming next.”
In his late thirties at the time, with thinning hair and a shy smile, Clement is the mild-mannered native of a small town in Wisconsin. He is also one of the most talented appellate advocates of his generation. Now in private practice, Clement is hired to argue more Supreme Court cases in a single year than most appellate experts will argue in a lifetime.
When Clement called me in early 2005, he knew how strongly I felt about the constitutional issues in the Medellín case, and he didn’t relish being the bearer of bad news. But he was a good soldier, even in an administration that didn’t always stand up for its conservative principles. So he informed me that President Bush had decided to sign a two-paragraph order purporting to compel the state courts to obey the World Court.
Clement explained that the administration admitted that no international treaty required state courts to obey the World Court. But they were taking the position that the president’s inherent authority as commander in chief empowered him to promote “international comity”—goodwill among nations—by forcing the courts of Texas to obey the World Court. This approach, he continued, would allow the president—at his sole discretion—to turn on and off the power of the World Court over legal proceedings in the United States.
My reaction was, to say the least, unenthusiastic.
“Ted,” said Paul, doing his best to put a good spin on this surrender of American sovereignty and blow to federalism and the separation of powers, “you should be happy with this, because the great thing is that with this new power we’re claiming, the president keeps his finger on the trigger. He gets to decide when to employ it.”
“I have two thoughts,” I said calmly. “Number one, that’s not very comforting, given how it’s being employed right here and now.” I was thinking about all the crackpot dictators and America-haters who wield outsize influence at the United Nations—as well as the memory of two raped and murdered teenage girls who might now never have justice.
“But number two, Paul, as Scripture says, ‘There came a Pharaoh who knew not Joseph and his children.’ George W. Bush is not going to be the last president of the United States, and if he has this power, what about the next president, or the next president, or the next president?”
Paul had no good answer.
The president’s executive order—written as a memorandum to his attorney general—left the state of Texas with a difficult choice. George W. Bush was the former governor of Texas. He was a Republican. He was a friend of Greg Abbott’s and mine, not to mention my former boss. Would we really argue in court that his executive order was the abuse of power we believed it to be?
I am proud to say that Abbott never wavered. He knew that Texas was right and Bush was wrong, and he decided to stand up for the principle that no president—not even a friend and fellow Republican—can defy the Constitution. And so I went to the Supreme Court and argued on behalf of Texas that, with or without an executive order endorsing it, the United Nations’ World Court has no authority to bind the courts of the United States.
Virtually every academic and media observer predicted we were toast. They believed there was no argument Texas could make that would carry the votes of five justices on the Supreme Court, because the narrative proposed by the opposing side appeared so compelling: Texas cannot flout international commitments, international courts, and the president of the United States. According to their logic, Justice Kennedy would come home and tell his grandchild, “Today, we had a case about whether a rogue state can defy treaties ratified by the United States of America.”
If that narrative had prevailed, our chorus of media and academic critics would have been right. We would have lost. So we had to change the narrative.
Many states would have litigated Medellín as a federalism case. They would have focused on the argument that the federal government doesn’t have the authority to set aside a state’s rules of criminal procedure. But the problem with that strategy is that it played right into the narrative that Texas was defying the treaty obligations of the federal government.
For that reason, we made a different strategic decision, which was to make Medellín into a separation of powers case. The lead argument we presented in our brief was that the president’s order violated the authority of Congress, because the Senate ratified the Vienna Convention on the explicit understanding that the treaty was not binding on state and federal courts. Our narrative was that the president had usurped Congress’s power by executive fiat.
Our second argument was that the president’s order usurped the authority of the Supreme Court, because the Court, in a case called Sanchez-Llamas, had recently adjudicated a related question about whether the World Court could bind the American justice system. In effect, the president’s order said it didn’t matter how the Supreme Court interpreted federal law; what mattered was how the man in the Oval Office interpreted federal law. That, of course, is not what Chief Justice John Marshall wrote in the landmark 1803 Supreme Court decision, Marbury v. Madison.
It was one of the great privileges of my life that I had the opportunity to stand before the Supreme Court and rely, as a principal authority, upon Marbury v. Madison, which held, “It is emphatically the province and duty of the judicial department to say what the law is.”
Finally, as a third argument, and very much a tertiary argument, we raised the federalism concerns—that the president’s order violated the authority of the states. Neither the president nor Congress may, as our brief said, “alter the structure of the state government or commandeer the state judiciary in order to implement federal policy.” I believed this argument was valid, but I didn’t have confidence that it alone would be enough to attract the support of five justices. As a result, in a fifty-page brief, we gave it only about four pages.
Our approach to the case began to bear fruit at the oral argument on October 10, 2007. During Solicitor General Paul Clement’s time at the podium in defense of President Bush’s executive order, Justice Scalia said to his former law clerk, “Usually, when we have treaties that are not self-enforcing, the judgment of whether that international-law obligation shall be made domestic law is a judgment for the Congress.”
Quite so. Justice Scalia’s observation perfectly captured our separation of powers narrative, as did his subsequent ridiculing of Clement’s position. “You’re telling us that, well, we don’t need the Congress,” said Scali
a. “The president can make a domestic law by writing a memo to his attorney general.”
After Justice Scalia captured the essence of our first separation of powers argument (that the president was usurping Congress’s authority), Chief Justice Roberts captured the essence of our second separation of powers argument (that the president was usurping the Supreme Court’s authority). The Chief Justice asked Clement if the president “can take action that’s inconsistent with the determination of federal law by this Court?” When Clement agreed that the president cannot, Roberts replied, “I thought we determined in Sanchez-Llamas that the treaty did not mean what the [World Court] said it means in this case.”
Minutes later, Justice Kennedy echoed this theme. “I agree that we should give [the World Court’s] determination great weight, but that’s something quite different from saying that [the president] can displace the authority of this Court on that issue of law.”
At that moment, before my own argument had even begun, I breathed a sigh of relief. If we had Justice Kennedy, we probably had five votes.
In the end, when the decision was handed down five months later, we didn’t have five votes . . . we had six.
With an opinion written by Chief Justice Roberts and joined by the Court’s conservatives and also the liberal Justice John Paul Stevens, the Supreme Court agreed with Texas across the board. It held that the World Court had no authority whatsoever to bind the U.S. justice system. At the same time, it struck down the president’s order, concluding it was unconstitutional for the president to unilaterally surrender the sovereignty of the United States of America.
Today, the Court’s decision in Medellín is especially important. At the time of this writing, the Obama administration is threatening to try to go to the United Nations to end run Congress and get a Security Council resolution adopting whatever Iran nuclear deal they are able to negotiate. The purpose, they have explained, is to try to transform that UN resolution into domestic law that would bind a subsequent president. But, as the Court held in Medellín, the UN has no authority whatsoever to bind the United States. President Obama’s UN-Iran strategy cannot succeed, because Medellín made explicit that no president—Republican or Democrat—has the constitutional authority to subvert U.S. sovereignty.