One of the cases granted by the Court yesterday raises some intriguing issues that I want to discuss. In Puerto Rico v. Sanchez Valle, the question presented is whether Puerto Rico and the Federal Government are separate sovereigns for purposes of the Double Jeopardy Clause. Under Bartkus v. Illinois, a 1959 decision written by Justice Frankfurter, the Double Jeopardy Clause does not bar the United States from prosecuting someone who was acquitted in a state criminal trial. The Court’s theory was that this part of the Fifth Amendment applies only to a specific level of government–federal or state–that is sovereign. Is Puerto Rico analogous to a state because of its unique commonwealth status, or is it more appropriate to view Puerto Rico as a federal territory that is not a separate sovereign in this context? Because Justice Sotomayor is Puerto Rican and wrote her Note on the legal status of the island, her perspective should be especially interesting
I hope, though, that some amicus or Justice raises the question of whether Bartkus should be overruled. The decision rests on a very dubious rationale and, I think, applied incorporation incorrectly with respect to this powerful principle that protects unpopular defendants. Someone should make this point assuming that the Court decides that Puerto Rico is a separate sovereign.