"In just over six years, Cruz argued nine cases before the U.S. Supreme Court, more than any other Texas lawyer during this period and more than all but a few lawyers in the country. In addition, he filed dozens of briefs in federal and state appeals courts. In his arguments before the high court, Cruz won five cases and lost four, but that understates the magnitude of his success. The cases he lost were rather minor; in one of them he appeared as a friend of the court. The cases he won had more drama and importance. The most notable, from 2008, began, as Cruz recounted to me, when �two teen-age girls who were walking home one night stumbled into a gang initiation and were horribly gang-raped and murdered. One of the most brutal crimes that shocked the conscience of the city of Houston. Ernesto Medell�n was one of the leaders of the gang, and he was apprehended several days later, and he confessed to it right away. His confession was one of the most chilling documents I�ve ever read, handwritten, where he describes bragging about raping these little girls. He describes showing off his bloodstained clothes. He describes keeping, as a trophy of the night, one of the little girls� Mickey Mouse watches. This was an unrepentant murderer. He was convicted, he was sentenced to death, and then the case took a strange turn.�
The World Court, which is the judicial arm of the United Nations, issued a directive to the United States to reopen the cases of Medell�n, who was Mexican, and fifty other Mexican nationals who were on death row. After their arrests, none of the defendants had been offered the consular services of the Mexican government, a right that the United States was treaty-bound to honor. In a crucial twist, the Administration of George W. Bush agreed with the World Court judgment. The Justice Department asserted that the cases, including Medell�n�s, should be reopened, because the defendants had not been granted their rights under the treaty. As both a legal and a political matter, Texas�s position looked weak. How could Abbott (and Cruz) take on a President of the United States who also happened to be a fellow-Republican and fellow-Texan? And how, in any event, could the state of Texas overrule a judgment of both the United States government and the World Court?
�In both law and politics, I think the essential battle is the meta-battle of framing the narrative,� Cruz told me. �As Sun Tzu said, Every battle is won before it�s fought. It�s won by choosing the terrain on which it will be fought. So in litigation I tried to ask, What�s this case about? When the judge goes home and speaks to his or her grandchild, who�s in kindergarten, and the child says, �Paw-Paw, what did you do today?� And if you own those two sentences that come out of the judge�s mouth, you win the case.
�So let�s take Medell�n as an example of that,� Cruz went on. �The other side�s narrative in Medell�n was very simple and easy to understand. �Can the state of Texas flout U.S. treaty obligations, international law, the President of the United States, and the world? And, by the way, you know how those Texans are about the death penalty anyway!� That�s their narrative. That�s what the case is about. When Justice Kennedy comes home and he tells his grandson, �This case is about whether a state can ignore U.S. treaty obligations,� we lose.
�So I spent a lot of time thinking about, What�s a different narrative to explain this case? Because, as you know, just about every observer in the media and in the academy thought we didn�t have a prayer. This is a hopeless case.�
Cruz decided to change the narrative into one about the separation of powers. He refashioned the case from a fight between Texas and the United States to one between the executive branch and the legislative branch of the federal government, with Texas advocating for Congress. He argued that the President could not order Texas to reopen the cases without the specific authorization of Congress. Cruz duelled with Stephen Breyer and other skeptical Justices for well over the allotted thirty minutes. Breyer ribbed Cruz: �As I read the Constitution, it says all treaties made, or which shall be made, under the authority of the United States shall be the supreme law of the land, and the judges in every state�I guess it means including Texas��the audience laughed��shall be bound thereby.�
�Certainly, Justice Breyer,� Cruz answered. �Texas, of course, does not dispute that the Constitution, laws, and treaties are the supreme law of the land.� But, he went on, the President�s order, in this case, was none of these. The questioning of Cruz became so raucous that, at one point, Justice John Paul Stevens felt compelled to interject, �You said there are six reasons. . . . I really would like to hear what those reasons are without interruption from all of my colleagues.� Cruz won the case, six-to-three, with Stevens joining the Court�s conservatives. In another case, a major challenge to Texas�s 2003 electoral redistricting on the ground that it discriminated against minorities, the number of plaintiffs before the Court was so large that Cruz was allowed to file a hundred-and-twenty-three-page brief in response, well above the usual page limit. He won that case as well."
