Greetings, Court fans!
The Court issued two significant, if complicated, decisions on Tuesday.
First, in Hall Street Associates v. Mattel, Inc. (06-989), the Court held 6-3 that parties to an arbitration agreement who seek to enforce an award under the Federal Arbitration Act (“FAA”) cannot, by contract, expand the scope of a court’s review of the award. The FAA makes arbitration agreements enforceable and provides for “streamlined” judicial review, with extremely narrow standards for vacating an arbitration award (e.g., the arbitrator was corrupt). The issue in Hall Street was whether the parties to an arbitration agreement can contract for more expansive judicial review – for example, making the arbitrator’s legal rulings subject to de novo review. The Court’s answer is “not under the FAA.” Writing for the majority, Justice Souter concluded that, at least where the parties use the FAA’s “expedited” review process, the FAA’S judicial-review provisions are exclusive: A court “must” confirm an award unless one of the FAA’s enumerated exceptions applies. Reading the statute any other way would defeat the purpose of arbitration as a streamlined method of resolving disputes. Hall Street had argued that the Court’s previous adoption of the “manifest disregard” standard of review – not mentioned in the FAA, and which permits vacatur where the arbitrator has manifestly disregarded clearly applicable law – showed that the FAA grounds were not exclusive. But in a holding that is bound to cause confusion, the Court dismissed the “manifest disregard” standard as not necessarily meaning anything. “Maybe [it] was meant to name a new ground for review, but maybe it merely referred to the [existing FAA] grounds collectively.” (That’s a lot of “maybes” given that it’s the Court’s own language!) Either way, the majority thought it did not justify allowing parties to contract around the FAA’s limited scope for judicial review.
Now for the complications: Hall Street was not a typical case, where parties have an arbitration agreement, arbitrate, and then the winner seeks to confirm the award. The case began in federal district court, and it was in the context of that litigation that the parties agreed to arbitrate only certain parts of the case. The agreement – approved by the court – provided that the court could review the arbitrator’s legal rulings de novo. Under those circumstances, the majority noted, the FAA might not apply at all since the district court has general authority under the Federal Rules to manage its docket. The Court therefore remanded for the Ninth Circuit to consider whether the district court’s ruling could be upheld on that ground. (Given these odd facts, one wonders why the Court needed to address the FAA question at all . . . .) The Court also expressly limited its holding to the FAA’s enforcement mechanisms and did not address state statutory or common laws, “where judicial review of different scope is arguable.”
Justices Stevens (joined by Justice Kennedy) wrote in dissent that the purpose of the FAA was to promote arbitration by ensuring enforcement of valid agreements to arbitrate – like this one. Justice Breyer separately dissented on the ground that nothing in the FAA precluded parties from agreeing to expanded judicial review. He saw no need for a remand where the parties had agreed to expanded judicial review and the district court already had approved it.
The second opinion of the day came in Medellin v. Texas (06-984), which hopefully will not affect most of us but nevertheless represents a significant ruling on the scope of executive power. The case has a bit of a history at the Court. Medellin, a Mexican national sentenced to death in Texas state court, claimed that Texas authorities never told him that the Vienna Convention on Consular Relations gave him the right to contact the Mexican consulate after his arrest. Medellin (and fifty other similar inmates) took his claim to the International Court of Justice (ICJ). In its decision (known as Avena), the ICJ held that the United States had violated the Convention and, “by means of its own choosing,” had to review and reconsider Medellin’s sentence. The Fifth Circuit, however, held that the Convention did not create any right that Medellin could privately enforce because countries, not individuals, are parties to the Convention. The Court granted cert on that issue in 2004, but DIG’d the case when the President announced that the U.S. would abide by Avena “by having State courts give effect to the decision.” The Texas courts refused to go along, however, holding that the President could not just order the states to implement an ICJ decision and that neither Avena nor the President’s order could displace Texas’s bar on successive habeas petitions. So the Court granted cert on that new issue, as well as the issue of whether state courts were bound to honor U.S. treaty obligations.
This time around, Texas won, with the Chief writing for the Court. While no one disputed that Avena was a binding international obligation on the United States, the issue was whether it was binding domestically on state and federal courts. Generally, treaties require implementing legislation from Congress unless they are clearly intended to be “self-executing,” and none of the treaty provisions relevant to the Avena decision were self-executing. The Convention’s protocol for ICJ jurisdiction was only that – a grant of jurisdiction – and did not commit signatories to comply with ICJ rulings. The UN Charter notes that members “undertake to comply” with ICJ rulings, but the Court held that this was only a political commitment, not a directive to domestic courts. Similarly, the ICJ Statute itself provides that it hears disputes only between countries, not individuals, and that it has binding force only as between parties to specific cases. So ICJ decisions are not self-executing, and since there was no implementing legislation for Avena, it was not binding on Texas courts.
That left the President’s order as the only other ground for making Avena binding, but the Court held that, at least in this case, the President did not have the authority to mess with Texas. The Constitution gives Congress, not the President, the power to convert a non-self-executing treaty into domestic law. The Court also rejected the government’s contention that Congress had acquiesced to the President’s authority in this area. While the acquiescence rationale might apply in some contexts (like executive agreements to settle civil claims between U.S. citizens and foreign governments), a presidential order to state courts to reopen criminal judgments and ignore their procedural rules was unprecedented.
Justice Stevens concurred in the judgment, but his heart wasn’t in it. He rejected the majority’s presumption against finding a treaty self-executing, but he agreed that nothing in the relevant treaties authorized the Court to enforce Avena. And while he thought the President’s order was “commendable,” he agreed that it was not binding law. He noted, however, that the United States was still obliged to comply with Avena, and that sometimes it was states that had to safeguard the country’s “honor and integrity.” Since Texas had caused us to breach one treaty obligation, he urged it to prevent another breach by complying with Avena and reviewing Medellin’s case – especially since compliance would be easy and largely risk-free. (It was hard to see how any Convention violation could have prejudiced Medellin’s trial, since he had consular assistance at that point, so on habeas review Texas probably could easily uphold his sentence.)
Justice Breyer led the dissenters (himself and Justices Souter and Ginsburg), who thought that U.S. consent to ICJ jurisdiction was enough to make Avena binding law. Breyer went into a lengthy history of treaty implementation, the upshot of which is that self-executing treaties are common – though not always marked by the clear self-executing language the majority required. “At best,” he wrote, “the Court is hunting a snark” – and at worst it is undermining many current treaties that lack implementing legislation (Breyer, characteristically, listed them all in an Appendix). He found it irrelevant that Mexico, not Medellin, was the party in Avena, because Mexico brought the case to vindicate Medellin’s rights. Breyer did not reach the issue of presidential authority, which he would leave “in the constitutional shade” given the Court’s lack of expertise in foreign affairs and the compelling interests at stake.
The Court’s order list this week included two cert grants. In United States v. Hayes (07-608), the Court will consider “whether, to qualify as a ‘misdemeanor crime of domestic violence’ under 18 U.S.C. 921(a)(33)(A), an offense must have as an element a domestic relationship between the offender and the victim.” And in Pearson v. Callahan (07-751), the Court will ponder the following questions: (1) “Does [the ‘consent once-removed’] exception authorize police officers to enter a home without a warrant immediately after an undercover informant buys drugs inside (as the Sixth and Seventh Circuits have held), or does the warrantless entry in such circumstances violate the Fourth Amendment (as the Tenth Circuit held below)?” (2) “Did the Tenth Circuit properly deny qualified immunity when the only decisions directly on point had all upheld similar warrantless entries?” and (3) “Whether the Court’s decision in Saucier v. Katz, 533 U.S. 194 (2001), should be overruled?”
That appears to be all for this week. Until next time, thanks for reading!
Ken & Kim
From the Appellate Practice Group at Wiggin and Dana
For more information, contact Kim Rinehart, Ken Heath, or any other member of the Appellate Practice Group at 203-498-4400