Typically, a justice who disagrees with your position will fire a question at you not with the purpose of discovering the answer, but with the purpose of demonstrating that your answer is so untenable or imbecilic that the swing justices couldn’t possibly agree with your position. What makes arguing before the Supreme Court so invigorating is that these questions can often be among the first in a string of questions designed to lead you down a slippery slope. That slippery slope, inevitably, might lead you to an outcome that you couldn’t possibly defend. And so an oral advocate has to respond immediately, and in a fraction of a second anticipate where the justice is going with the line of questioning and frame his answers in a way that he doesn’t drive away the swing votes needed to win the case. It’s unbelievably fast, and the adrenaline flows.
Rarely does an advocate get more than a sentence or two to respond to a question before another justice jumps in with yet another question. And the justices who agree with your position typically don’t think you’re arguing it the best way; they’ll often ask “friendly” questions like, “Counsel, don’t you really mean to say such and such?” Again, they are trying to argue through you to get to the swing justices who might be persuadable.
In the Medellín argument, in response to a question from Justice Stephen Breyer, I responded that there are “six separate reasons” why the decision of the World Court is not enforceable and binding upon the U.S. justice system. As I was working through the first reason, amidst a lengthy exchange primarily with Justice Breyer, Justice Kennedy interjected with a separate question. But at that point, Justice John Paul Stevens—the lion of the left, a small Midwestern man, unfailingly polite, always wearing a bow tie, with a brilliant mind and always the most dangerous of the liberals when it came to hostile questioning—interrupted. Justice Stevens stated: “It’s critical to me to understand the effect of the judgment, and you said there are six reasons why it’s not an ordinary judgment. I really would like to hear what those reasons are… without interruption from all of my colleagues.”
Laughter engulfed the courtroom. A justice’s asking to hear in full an advocate’s line of argumentation, as bluntly and characteristically politely as Justice Stevens had requested it, is something that had never happened to me before at the Court, and it has not happened since. The other justices relented, for a few moments, and they allowed me the opportunity to lay out all six of the arguments I had for why the decision of the World Court was not enforceable and binding upon the U.S. justice system.
Ultimately when the decision came down, the Supreme Court agreed with us. Texas won, 6–3. The opinion was authored by Chief Justice Roberts, and it agreed with Texas across the board. It struck down the World Court’s assertion of authority over the U.S. justice system, and it struck down the president’s order as exceeding his authority under the Constitution.
Texas had argued that no foreign court has the authority to bind the American justice system and that no president, Republican or Democrat, has the constitutional authority to give away U.S. sovereignty. And the Supreme Court agreed.
Not only did we win the support of the more conservative members of the Court, but we also won the vote of Justice Kennedy and even Justice Stevens, the leader of the Court’s liberal wing who had requested to hear my full line of argumentation during oral argument and who separately concurred with Chief Justice Roberts’s majority opinion.
The stakes in that case were enormous. As legal scholar Ilya Shapiro put it at the time, “Medellín was a significant victory for national sovereignty and democratic legitimacy.”
Medellín was decided in 2008—twelve years ago. We prevailed 6–3, but Justice Stevens has since been replaced by Justice Elena Kagan. And, although she has not yet squarely faced the question, there is little reason to believe Justice Kagan would vote differently than the three dissenters.
On August 5, 2008, José Ernesto Medellín was put to death at the Texas State Penitentiary at Huntsville. Medellín went to meet his Maker and face judgment for the unspeakable crimes he committed fifteen years earlier against two teenage girls.
On the day I argued the case, I stood on the steps of the Supreme Court consoling the parents of one of those girls. The pain was etched on their faces; they had gone through seemingly endless litigation, reliving over and over again the horror of their daughter’s last night. My heart grieved for them—as a parent, I could only imagine their soul-wrenching agony. And yet, in Medellín, the dissenting justices were willing to extend those proceedings for many more years.
The case exposed a massive and far-reaching divide on the Court between those justices who would uphold American sovereignty and those justices willing to cede the ability to bind our justice system to the World Court and the United Nations, willing to allow the president the power to undermine our justice system and the rule of law.
On that fundamental issue, with the Court today, in all likelihood, we’re just one vote away.
As with virtually every other policy matter, on questions of national sovereignty and nationalism versus transnationalism, Democrats and the broader political left today have only become more radical.
The Obama administration chomped at the bit to empower the unaccountable mandarins working at transnational institutions at the expense of our own national sovereignty. Time and time again, Obama, alongside Secretaries of State Hillary Clinton and John Kerry, worked to elevate undemocratic institutions such as the United Nations. As the UN and other faceless bureaucracies from foreign nations were elevated, Obama concurrently diminished the capacity of the American people to make our own decisions about the future of our own nation through our elected officials.
One particularly galling example was the Obama Iran nuclear deal, otherwise known in
