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
