Julian Ku, Hofstra University School of Law:

"Having failed to motivate myself to get down to D.C. for oral argument in Medellin, and being too cheap to shell out the money for an instant transcript, I will have to content myself with reviewing the several very interesting press accounts of the argument at SCOTUSBlog, Slate, Law.com, and the NYT. All of these accounts seem to agree that the Justices' questions reflect no consensus on what to do with what is becoming a very procedurally messy case.
All of these accounts, however, do suggest that the Justices are not thrilled with the idea of staying the case while the state court proceeds, preferring either they "DIG" the case (dismiss, cert being improvidently granted) or reaching the merits of the case. This means maybe I was wrong in thinking that Texas was gambling by opposing the stay motion. Ordinarily, courts don't like to reach out to decide cases with complex and difficult cases raising important constitutional issues if those cases could be decided elsewhere. This is why Medellin's stay motion seemed like a sensible strategy. But this is the Supreme Court of the United States. Deciding complex constitutional cases that they don't have to decide and that might otherwise be left to the states or Congress is exactly what this (or any) Supreme Court loves to do.

My initial view, after the Government's brief was filed, was that the Court would dismiss the case and avoid the constitutional and statutory interpretation dilemmas raised by the parties in this case. The various accounts from yesterday do not lead me to change my initial prediction and also suggest strongly that no stay will be issued. The only question now seems to be whether the Court will "DIG" the case or whether they will reach out and decide the merits. Although I would prefer the Court to reach the merits and adopt the views of Texas, the U.S., and the brief of the Seven Law Professors (and perhaps cite articles by some of those brilliant professors) that federal habeas jurisdiction does not permit a treaty-based claim, it seems like "digging" the case is the most responsible thing for the Court to do here.

UPDATE: My colleague Eric Freedman, who knows everything there is to know about these sorts of things, points out that the Court has another option besides the ones discussed above. They could G.V.R. (grant-vacate-remand) the case back to either the Fifth Circuit or the federal district court in light of the U.S.G.'s intervention. Unlike "digging" the case, this would vacate the Fifth Circuit's opinion in this case.

The only problem with this option is that it is not at all clear if the Fifth Circuit's opinion in this case is wrong, even in light of the S.G.'s brief and the President's executive order. So vacating that opinion may not be what the court wants to do if they want to remain agnostic on whether or not there is indeed a federal judicial remedy for Medellin here. On the flip side, "digging" the case would essentially leave in place a decision going the other way on the question of a federal judicial remedy.

So maybe they should reach the merits after all…" [March 29, 2005: Opinio Juris has the post.]