Justices May Sidestep Death Row Decision

The Supreme Court said Monday that it might put off a decision on whether 51 Mexican nationals on death row in California, Texas and several other states were entitled to reopen their cases because of a ruling by the International Court of Justice in The Hague.

Instead, the justices said the state courts in Texas should take up the matter first to deal with an unusual order by President Bush.

One month ago, Bush surprised lawyers on both sides of the dispute by declaring that the state courts must consider whether to give the Mexican defendants new trials or new sentencing hearings. The president said the United States had a duty to “discharge its international obligations” by complying with a clear ruling of the international court.

In the Vienna Convention of 1963, U.S. officials agreed that they must be informed when Americans were arrested abroad. The same principle applied to foreign nationals who were arrested and held in the United States.

Two years ago, Mexico sued the United States because it had not been informed when Mexican nationals were arrested, tried and sentenced to death. The suit was brought on behalf of 51 Mexican nationals on death rows in California, Texas, Illinois, Nevada, Ohio, Oregon, Oklahoma, Arizona and Arkansas.

The international court, also known as the World Court, ruled for Mexico and said U.S. officials must “review and reconsider” the convictions and sentences of the 51 Mexican nationals.

Until Bush’s order, it was unclear how -- or whether -- the United States would abide by the international order. No one had anticipated that Bush would put himself in conflict with Texas state officials in a challenge to the validity of more than a dozen death sentences in the Lone Star State.

California has 27 Mexican nationals on death row who could benefit from Bush’s order, lawyers said.

The surprise order also threw a wrench into the pending proceedings before the Supreme Court in the case of Jose Medellin vs. Doug Dretke, who heads the Texas prison system.

The justices already had agreed to decide in this case whether the World Court’s ruling gave the Mexican national a right to reopen his case in federal court.

But when the issue came up for argument Monday, several justices said it might make more sense to send the dispute back to Texas.

“Isn’t it true that the Texas proceeding could make this moot?” asked Justice John Paul Stevens.

If the Texas courts decided they must follow Bush’s order, it would allow the court to “avoid the necessity of deciding a lot of difficult questions.”

Maybe the case should be “dismissed as improvidently granted,” offered Justice Sandra Day O’Connor, an action the court sometimes took to dispose of a case that it regretted having taken up.

In this case, what has changed since the court agreed to hear the matter is the position of the U.S. government.

If the justices follow the suggestion voiced by Stevens and O’Connor, they may issue an order as early as next week that dismisses the pending case.

But that is by no means certain. Chief Justice William H. Rehnquist and Justice Antonin Scalia said they would prefer a clear ruling that said international treaties did not create rights for individuals.

Scalia said he did not believe a foreign court’s interpretation of an international treaty must be followed by the Supreme Court -- even if the president agreed with the foreign court.

“Are we bound by that?” he asked.

Justice Anthony M. Kennedy picked up on the same point. “Can the president give an interpretation of a treaty that is binding on us?” he asked. “I think that is ultimately for us to decide.”

If Rehnquist, Scalia and Kennedy form a majority, they could rule that the international treaty does not give inmates a right to reopen their cases in federal court.

Even so, that would not dispose of Bush’s order in the state courts.