More on Medellin; Breyer's conversion

Opinio Juris is holding an "Insta-Symposium" on the Medellin decision of the United States Supreme Court, now only a few hours old. (The blogosphere is a place full of wonders and marvels.) Volokh and Bench Memos (here, here, and here) weigh in. The holding of the decision is somewhat complicated, but can basically be summarized thus: a judgment by the International Court of Justice (ICJ) against the United States, entered under the authority of the Vienna Convention, to which the United States is a signatory, is not in itself binding legal authority in (Texas) state courts.

I defer to the doctrinal analyses by persons more expert in this area than I. (Ed Whelan calls the decision "a significant victory for American citizens and for representative self-government.") However, one addtional observation seem edifying.

In a long and tedious dissent, Justice Breyer argues that the judgment of the ICJ is self-executing because the Supremacy Clause of Article VI says so. The clause says no such thing. Instead, it provides that the US Constitution, federal laws enacted pursuant to the Constitution, and lawful treaties "shall be the supreme law of the land" and that "the judges in every state shall be bound thereby." In his majority opinion, the Chief explains why the Supremacy Clause does not render a judgment by the ICJ self-executing in state courts.

But what strikes the observant reader from Breyer's dissent is his conclusion. "In sum, a strong line of precedent, likely reflecting the views of the Founders, indicates that the treaty provisions before us and the judgment of the International Court of Justice address themselves to the Judicial Branch and consequently are self-executing." (emphasis added) Halleluiah and pass the Scalia bobble-head dolls! Justice Breyer has discovered the virtues of original meaning!

The conservative legal revolution has managed to turn the tide. We're all originalists now.

Pushing legal institutions rightward

Paul Mirengoff at Power Line has a terrific post about Steven Teles' review of the rise of the conservative legal movement. Conservatives were for much of the twentieth century absent from most influential legal institutions, such as the federal courts, public interest firms, and nationally-prominent law schools. That has changed, and not by accident.

Mirengoff notes that conservatives failed to influence legal institutions in the 1970's, when they imitated the tactics and strategies of liberals. They met with success only after they took a "supply side" approach to the problem. Beginning in the 1980's, conservative lawyers moved American legal institutions in "entrepreneurial, relatively informal, and idea-centric ways."

What Mirengoff (and perhaps Teles, though I have not read his book) fails to mention is that conservatives succeeded also by eschewing libertarianism and communicating true conservative principles and ideas. For example, it was not sufficient to oppose government action generally. That approach to lawyering had (and has) almost no effect upon legal institutions, which are capable of distinguishing between good government actions and bad ones. Conservatives found success only when originalists like Antonin Scalia and Robert Bork began to articulate a theory of constitutional interpretation that opposes those government actions that are inconsistent with the constitutional text. In just over twenty years, originalism has gone from being a fringe theory to being the dominant interpretive mode in the federal judiciary. And though originalists still comprise a minority in the legal academy, we represent an influential and growing minority; liberals are taking us very seriously.

Ideas matter. And the ways in which we communicate ideas matter. These are additional lessons to be learned from the rise of the conservative legal movement.