Humberto Leal Garcia: The Supreme Court Makes a Bad Situation Worse

The Court blew off warnings from the White House and Justice Department that executing the Mexican citizen would "place the United States in irreparable breach" of international law

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Relative holds a picture showing Humberto Leal and his parents prior a mass to try to stop his execution in Guadalupe. Tomas Bravo/Reuters.

When the five conservative justices of the United States Supreme Court turned their backs Thursday afternoon on Mexican national Humberto Leal Garcia, they weren't just ensuring that the convicted murderer would then be executed by Texas prison officials. They were also abdicating their solemn judicial responsibility not to make a bad situation worse. It was one of the most ignoble acts by the Court in recent memory; a reminder, as if we needed one, of the hostility the current majority often expresses toward the workings of the real world.     

In a brief, unsigned opinion that was long on sterile formalism and short on sense and justice, the Court rejected an appeal to delay Leal's execution for a few more months pending the passage of federal legislation designed to formalize the rights of foreign nationals -- including Americans abroad -- to be able to contact their consular officials if they are detained. About an hour after the Supreme Court denied his final request, Leal was executed. He said he was sorry and reportedly shouted "Viva Mexico" before the lethal injections were administered to him in the state's death chamber in Huntsville, Texas.

Just because Congress has consistently failed to do the right thing here doesn't mean that the Court had to follow its lead.

Although this is not an evident case of an innocent man wrongly convicted -- no one seriously claims that Texas prosecutors got the wrong man -- the matter of consular notification has been a vibrant topic of international discussion and angst for years. Leal, convicted of murder in Texas 16 years ago, was denied the right to access to the Mexican consulate at the time of his arrest. In 2004, the International Court of Justice at the Hague declared that such rights were valid under the Vienna Convention. In 2008, the Supreme Court agreed -- but said that Congressional action was necessary to allow Leal to fully vindicate his right. Congress has not yet acted on the Court's invitation -- to the eternal shame of lawmakers, but that's a whole other story -- and on Thursday the Court said that Leal's time had run out.

It didn't matter that Leal's rights were violated, the Supreme Court's conservatives declared Thursday, because there was no reason to think that the outcome of his case would change were he now to have such access to consular officials. It was a "harmless" violation of law, the justices ruled, and Texas' interest in executing someone sentenced to death was greater than the interests of the federal government in ensuring a measure of comity and mutual respect in its international relations. We don't stay executions on behalf of legislation that may or may not be passed, the per curiam order read.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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