Thanks to the Federalist Society for inviting me to contribute as an “independent expert” to this Supreme Court preview. I want to draw readers’ attention to a case that’s received little attention so far, partly because the Court only recently decided to hear it. The case, Puerto Rico v. Sanchez Valle, implicates the question that has haunted U.S.-Puerto Rico relations since the 1950s: what is the legal “status” of Puerto Rico and what precisely is the island’s legal and constitutional relationship to the United States? As the well-crafted certiorari petition began: “This is the most important case on the constitutional relationship between Puerto Rico and the United States since the establishment of the Commonwealth in 1952.”
The specific issue is how the Double Jeopardy clause and the “dual sovereignty” doctrine apply to criminal prosecutions brought against the same defendant in federal court and the Puerto Rico courts. The Double Jeopardy Clause protects against successive prosecutions only by the same sovereign; the States have long been treated as separate sovereigns from the federal government for these purposes. The question is whether the Commonwealth of Puerto Rico, established in 1952, should be treated similarly to a State for purposes of double jeopardy. Puerto Rico is not a State, of course, but the federal courts since the 1950s have treated Puerto Rico as legal akin to a State for many legal purposes, such as state immunity from suit doctrines, including in cases I argued before the D.C Circuit in 2006 and before the First Circuit in 2004 (I have not had any involvement in Sanchez Valle).
The argument that Puerto Rico is not a distinct sovereign from the national government, which the current Supreme Court of Puerto Rico accepted, is that Puerto Rico is still a “territory” of the United States for constitutional purposes and that when Puerto Rico enacts its criminal laws—or any other laws—it is not exercising the powers of autonomous self-government but only the powers that have been delegated to it by Congress. Thus, the courts of Puerto Rico are in essence courts of the United States, Puerto Rico and the United States are “the same” sovereign, and once there has been a federal criminal conviction, a defendant cannot be tried for the same crime in the Puerto Rico courts. On the other side, the argument of the government of Puerto Rico is that the relationship of the United States to Puerto Rico, which the United States took possession of from Spain after the Spanish-American War of 1898, was fundamentally transformed in 1952, when Congress and Puerto Rico entered into a “compact” that created the Commonwealth of Puerto Rico. As a result, Puerto Rico held a Constitutional Convention and adopted its own popularly-ratified Constitution, which the United States Congress and the President approved. Since then, Puerto Rico has been a self-governing entity in much the same way as the States and should be considered a separate “sovereign,” entitled to prosecute criminal defendants under its own laws, for purposes of the Double Jeopardy Clause.
The issues are historically and legally fascinating, but also the most politically explosive and divisive issues in Puerto Rico: they go to the existential question of what Puerto Rico is and what its current and future relationship to the United States is and is likely to be. The issues also now profoundly divide the lower courts. The 1st Circuit, the federal court of appeals with the greatest expertise in Puerto Rico issues, has long held that Puerto Rico is a separate sovereign for double jeopardy (the 11th Circuit disagreed back in 1993, but rarely hears such cases). The Puerto Rico Supreme Court used to agree with the 1st Circuit, but in the decision under review, overruled its prior decisions and held that Puerto Rico is not a distinct sovereign.
The Supreme Court only episodically takes a crack at legal issues concerning Puerto Rico and even more rarely on legal issues that so directly implicate Puerto Rico’s fundamental legal status. I typically avoid getting into the business of making Supreme Court predictions, but I believe the Supreme Court, with a large majority, will reverse the Puerto Rico Supreme Court. But the specific outcome on the Double Jeopardy issue is less important than what the Court will say about the surrounding issues connected to Puerto Rico’s legal status. Even small statements related to this issue potentially will have great significance for debates and executive-branch and congressional-branch policy going forward on Puerto Rico’s status. Moreover, this is the first Puerto Rico case the Court will have heard since Justice Sotomayor joined the Court, and it would be surprising, given her powerful interest in these issues, if she did not write extensively on Puerto Rico’s legal status. Justice Breyer, too, has considerable familiarity with these issues from his time on the First Circuit, and he too is likely to have well-developed views. Sanchez Valle is under the radar screen for the moment, but it promises to be one of the most interesting cases of the Term.
 Rodriguez v. P.R. Fed. Affairs Admin., 435 F.3d 378 (2006); Rossello-Gonzalez v. Calderon-Serra, 398 F.3d 1 (2004).