Various thoughts on current events with an emphasis on politics, legal issues, books, movies and whatever is on my mind. Emails can be sent to email@example.com; please put "blog comments" in the subject line.
Three fairly interesting cases of mild importance that were written by Kennedy (judicial recusal), Sotomayor (judge calling back a jury) and Kagan (power of Puerto Rico to try a case per double jeopardy rules; Breyer with SS dissents, the latter without an opinion). Some chatter that something else interesting would occur; not really.
Puerto Rico has two major rulings this term -- a major deal -- the other case involving bankruptcy rules that might be a much less important opinion given pending congressional legislation. Here the Court 6-2 discussed how the "dual sovereignty" rule (states & in some fashion Indian tribes and the U.S. are separate sovereigns so double jeopardy does not apply) works and how double jeopardy applies here. The somewhat ironic thing here is that the "liberal" approach here can go both ways -- as not a separate sovereign for this purpose (telling caveat), the defendant wins, but Puerto Rico gets somewhat less power in the process.
The whole thing appears to make sense and it's nice that Ginsburg (with federalist Thomas going along) called into the whole dual sovereignty rule in general. The whole discussion also shows "dignity" is not just something Kennedy talks about, it having various applications (to states and individual rights). Likewise, this still holds in place the large amount of sovereignty Puerto Rico has over its local affairs. But, double jeopardy is a constitutional bar. Congress can legislatively pass criminal laws so that only Puerto Rico gets (if it cares to) deal with certain local crimes but once one part of the U.S. government prosecutes, another cannot. States are a special exception and it's a dubious one at that.
If I was more inclined to support the rule, the dissent might be a bit more acceptable. The majority has precedent behind it but some of the logic involved seems a tad artificial. The whole equal sovereignty of the states, even those who were once territories of the U.S., stuff comes off a bit mystical really -- Puerto Rico does seems to have enough sovereignty to count. But, it is part of the United States as a whole with "states" having a special role as seen by voting representation in Congress and the 10A. Justice Thomas concurred to note his different views on Indian sovereignty. That issue will arise in a pending case.
Update: SCOTUSBlog cites the negative reply from the governor of Puerto Rico, not surprising, but the whole thing seems overblown on some level. True criminal law is a basic matter of sovereignty, but avoiding double jeopardy in a few cases -- federal prosecutorial discretion will reduce the problem further -- is a rather narrow thing. At the end of the day, simply put, Puerto Rico is not a state or an independent entity. There are constitutional limits here with the U.S. (up to a point) correctly giving it a wide level of self-rule. These sorts of complaints probably help formulate a good balance.
Kennedy and the liberals split from Roberts et. al. in another case involving proper recusal rules. The opinion had a particularly interesting section on how one person can affect the whole in a multi-member court. Justice Thomas (with Kennedy) dissented in the third case, wanting a more clear-cut line regarding not reconvening a jury. Query why a clear-cut line was so important for Thomas there and a looser one in the recusal case? Guess things are complicated at the end of the day.
Meanwhile, a fairly convincing argument that the liberals will accept Heller in large part because it has only limited effect. Gun rights here are widely accepted, with a big assist from the NRA, Heller dealing with a couple of outliers. [Added to note this ruling on concealed carry does show there are some important arguments around the edges and shows at some point the USSC should take a case for argument on the issue of gun rights in public places.]
Meanwhile, Linda Greenhouse co-wrote a new book on the Burger Court. Will check it out and get back to ya.