The oral arguments of PR v. Sánchez start Wednesday at 11 Puerto Rico time. Since it is the second case on the docket it will probably start at noon. SCOTUS does not have a webcam, so we will have to wait for a transcript of the hearing and the recording. Often during the oral arguments—but not always— SCOTUS telegraphs how the voting will go. There are different possible scenarios:
- As the Colegio de Abogados de PR has argued, the Insular Cases be revoked. Highly unlikely; that argument is set out only in the amicus brief of the Colegio.
- SCOTUS rejects the case saying that the Supreme Court of Puerto Rico’s judgement isn’t final. This is not probable. See Cox Broadcasting Corp. v. Cohn 420 U.S. 469 (1975)
- SCOTUS says that the ELA is something new and special with sovereign powers. Except for the sovereignty, it’s something similar to what Judge Bryer said in Cordova & Simonpietri Ins. Agency Inc. v. Chase Manhattan Bank NA, 649 F.2d 36 1st Cir. 1981). Bryer is now a supreme court justice. Not likely owing to a large number of precedents regard territories. But it is possible.
- ELA is a territory subject to Congress’s powers, but for purposes of the fifth amendment’s “double jeopardy” HAS sovereign powers. This is possible but not likely owing, yet again, to the large number of precedents regarding territories. Also, it involves the freedom/liberty of a person—a topic which Kennedy & Scalia are very sensitive to.
- SCOTUS decides that it is a political question and decides not to get involved. It’s improbable since it deals with an individual’s rights and is in conflict with the first circuit, the eleventh circuit, and the supreme court of PR. What’s more, SCOTUS decided something similar in 1952 in the case of Puerto Rico v. Shell Co., 302 U.S. 253 (1937).
- The ELA is nothing more than territory WITHOUT sovereignty, and, as such, lacks ability to prosecute under its own sovereignty. I think the position of the Solicitor General of the United States is correct.
We will see what the judges say Wednesday.
Originally appeared as a series of Tweets on @muddlaw. Edited, translated, & published with permission of author.