Monday, February 25, 2008
Waiting for Medellin
On October 10th, four-and-a-half months ago, Medellin v. Texas was argued before the Supreme Court. Back then, my prediction was that the Court would find for the petitioner by a 6-3 or 7-2 majority. Since, the hard-working staff here at ILR has been putting in overtime, crunching the numbers and the cases, conferring with the bookies in Las Vegas, and we have finally come up with a more fine-grained prediction. Here it is: The Chief Justice will write the opinion of the Court in favor of the petitioner, though the justices in the majority will differ depending on the issue. By six votes to three (Scalia, Thomas, Alito), the Court will agree with the argument made by the Solicitor General that the Presidential Determination is constitutional under Article II and congressional acts and acquiescence. By that same majority (this time with Stevens, Ginsburg, and Breyer in dissent), the Court will disagree with the argument made by the petitioner that the Avena judgment has direct effect in U.S. courts. Consequently, there will be at least three opinions: (1) that of the Chief Justice, the opinion of the Court; (2) that of Justices Scalia (writing for the trio), Thomas, and Alito, concurring in part and dissenting in part; and (3) that of Justices Stevens, Ginsburg, and Breyer (writing for the trio), concurring in part and dissenting in part. The Court may decide the case as soon as tomorrow morning. Please note that the accuracy of my prediction owes nothing to that sweet-looking ILR t-shirt you've seen Justice Scalia wearing recently.