| () 100 U.S. 1
[ Ginsburg ]
[ OConnor ]
[ Souter ]
[ Breyer ]
JOSE ERNESTO MEDELLIN, PETITIONER v.
DRETKE, DIRECTOR, TEXAS DEPARTMENT OF
ON WRIT OF CERTIORARI TO THE UNITED STATES
APPEALS FOR THE FIFTH CIRCUIT
[May 23, 2005]
Justice Breyer, with whom Justice Stevens joins, dissenting.
I agree with Justice Ginsburg that, in light of recent developments, this Court should simply grant Medellíns motion for a stay. See ante, at 2 (Ginsburg, J., concurring); see also ante, at 12 (Souter, J., dissenting). But, in the absence of majority support for a stay, I would vacate the Fifth Circuits judgment and remand the case rather than simply dismiss the writ as improvidently granted. I join Justice OConnors dissent, for she would do the same. See ante, at 6, 1920.
For one thing, Medellíns legal argument that American courts are now bound to follow the ICJs decision in Avena is substantial, and the Fifth Circuit erred in holding the contrary. Ante, at 11 (OConnor, J., dissenting); see 371 F.3d 270, 279280 (2004). By vacating its judgment and remanding the case, we would remove from the books an erroneous legal determination that we granted certiorari to review.
Nor would a remand invite the Fifth Circuit to conduct proceedings rival to those unfolding in the Texas courts. Ante, at 2 (Ginsburg, J., concurring). Rather, I should expect the Fifth Circuit to recognize two practical circumstances that favor its entering a stay. See ante, at 1920 (OConnor, J., dissenting); see also ante, at 23 (Souter, J., dissenting).
First, the President has decided that state courts should follow Avena. See Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I. C J. No. 128 (Judgment of Mar. 31); George W. Bush, Memorandum for the Attorney General (Feb. 28, 2005), App. 2 to Brief for United States as Amicus Curiae 9a. And that fact permits Medellín to argue in the Texas courts that the Presidents determinationtaken together with (1) the self-executing nature of the treaty, (2) the Nations signature on the Optional Protocol, (3) the International Court of Justices (ICJ) determination that the United States give Medellín (and 50 other Mexican nationals) judicial, i.e., court, review and reconsideration of their Convention-based claims, by means of [the United States] own choosing, and (4) the United States undertak[ing] in the United Nations Charter to comply with ICJ judgmentsrequires Texas to follow the Avena decision in Medellíns case. Avena, supra, ¶¶ 138143, 153(9) (emphasis added); Charter of the United Nations, Art. 94.1, 59 Stat. 1051; cf. Ware v. Hylton, 3 Dall. 199, 237 (1796) (treaties superior to the Constitution and laws of any individual state (emphasis deleted)); Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 188 (1993) (President possesses unique responsibility for the conduct of foreign affairs); see also American Ins. Assn. v. Garamendi, 539 U.S. 396, 414416 (2003) (President has a degree of independent authority to pre-empt state law); Tex. Code Crim. Proc. Ann., Arts. 11.01, 11.071 (Vernon 2005) (Texas courts possess jurisdiction to hear Medellíns claims).
Second, several Members of this Court have confirmed that the federal questions implicated in this case are important, thereby suggesting that further review here after the Texas courts reach their own decisions may well be appropriate. See ante, at 5 (Ginsburg, J., concurring) (it is this Courts responsibility to address and resolve any significant legal ICJ-related issues that may arise in the state-court proceedings).
The first consideration means that Medellíns claims when considered in state court are stronger than when considered in federal courtand suggests the very real possibility of his victory in state court. The second consideration means that a loss in state court would likely be followed by review in this Court. Taken together they mean that, by staying the case on remand, the Fifth Circuit could well avoid the need for any further federal proceedings, or at least obtain additional guidance from this Court before taking further action. Given these practical circumstances, it seems to me unlikely that, were we to remand this case, the Fifth Circuit would move forward on its own, rather than stay its hand until the conclusion of proceedings in the state courts and possibly here.
For these reasons and those set forth by Justice OConnor, I agree with the course of action she suggests and respectfully dissent from the Courts decision to dismiss the writ.