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 At that point, Chief Justice Rehnquist had passed away and had been replaced by Chief Justice Roberts. And Justice O’Connor had retired and been replaced by Justice Alito.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
