While all nine justices agreed that the Supreme Court itself should not proceed at this point to a decision in the case of the Mexican man, José Ernesto Medellín, the court was sharply split over what to do.
The underlying issue in the case is whether the federal government, in defiance of a 2004 declaration by the International Court of Justice, can permit the execution of any of 51 Mexicans who were tried and convicted without notification to Mexican officials, as required by the Vienna Convention on Consular Relations.
The specific legal issue is whether, given the international law issues in the case, the United States Court of Appeals for the Fifth Circuit should have relaxed the high barrier against hearing Mr. Medellín's petition for a writ of habeas corpus, which the appeals court dismissed.
The behind-the-scenes debate at the Supreme Court, consuming the nearly two months since the case was argued on March 28, was evidently finally resolved only when Justice Ruth Bader Ginsburg agreed with four other justices simply to dismiss the grant of review the court had issued in December, before the Bush administration announced its new position.
The administration had initially described Mexico's case in the World Court as "an unjustified, unwise and ultimately unacceptable intrusion in the United States criminal justice system." On the eve of the Supreme Court argument, however, President Bush instructed Attorney General Alberto R. Gonzales to instruct state courts to abide by the World Court's order that Mr. Medellín and the 50 other Mexicans get new hearings.
When the justices heard arguments in the case, Medellín v. Dretke, No. 04-5928, it was clear they had concluded that they would not, themselves, decide it at this point. It was also evident that there was no consensus on what to do.
Without Justice Ginsburg's fifth vote for the unsigned opinion that announced the court's disposition, there would have been no majority for any course that was open to the court: to dismiss the case outright, to send it back to the Fifth Circuit for reconsideration or to defer a decision by issuing a stay that would permit the case to proceed in the Texas courts with a guaranteed path back to the Supreme Court.
In a concurring opinion, Justice Ginsburg said she would have preferred to have the Supreme Court retain jurisdiction over the case by issuing a stay, in effect putting the case on hold while Mr. Medellín's new appeal went forward in Texas. But she agreed to join Chief Justice William H. Rehnquist and Justices Clarence Thomas, Anthony M. Kennedy and Antonin Scalia in dismissing the case.
The unsigned opinion, labeled only "per curiam," meaning "by the court," said that the issues of federal jurisdiction that Mr. Medellín's case posed were extremely difficult, while his new appeal in the Texas courts "may provide Medellín with the very reconsideration of his Vienna Convention claim that he now seeks in the present proceeding." An eventual direct appeal from the Texas state courts back to the Supreme Court would avoid a number of these jurisdictional problems.
In her concurring opinion, Justice Ginsburg said that "the Texas courts are now positioned immediately to adjudicate these clearly presented issues in the first instance." She added, "In turn, it will be this Court's responsibility, at the proper time and if need be, to provide the ultimate answers."
Justices John Paul Stevens, Stephen G. Breyer, and David H. Souter also said they wanted to grant a stay while retaining Supreme Court jurisdiction over the case. But rather than joining the per curiam opinion, they joined a dissenting opinion by Justice Sandra Day O'Connor, who said the case should go back to the Fifth Circuit for further proceedings there. "It seems to me unsound to avoid questions of national importance when they are bound to recur," Justice O'Connor said.
However convoluted its path, the outcome meant that the court, at least at this point, would not need to confront issues of international law that had made this case one of the most visible on its docket, attracting briefs from around the world. It is not at all clear what will happen next. The Texas courts may well take the view, expressed by the state's attorney general, Greg Abbott, that Texas is not bound to follow the directive from the White House to grant Mr. Medellín a new hearing.