The transcript is now available.

JUSTICE KENNEDY: Can this court interpret the meaning of the Avena judgment if it's ambiguous? For instance, it said that a number of Mexico nationals have not received a hearing. It didn't say all of them. And I have a problem, incidentally, because I think Medellin did receive all the hearing that he's entitled to under the judgment anyway.

I think so, too. From the argument, it appears that there is a good chance this will be another 5-4 decision with Justice Kennedy in the majority, so it's good to know he has the same basic problem with the whole case that is the basis of our brief. Curiously, though, Chief Justice Roberts indicates on page 27 that he believes the ICJ's judgment "suggests there should be a new determination in every case." That suggestion, as our brief explains, is made in the context of discussing procedural defaults committed prior to actual notification of the consulate. The ICJ opinion's theory of why the treaty could trump a procedural default rule is inapplicable to post-notification defaults. On page 85, the Chief gets back to the issue of whether the Supreme Court has authority to interpret the ICJ judgment.

This is a close one. Stay tuned.