Legal Commentary

In opposing a petition for certiorari to the supreme court of Puerto Rico, the Solicitor General has adopted a truly odd reading of the relevant jurisdictional statute: The SG's brief argued that the SCOTUS lacked any jurisdiction over the Puerto Rican supreme court's orders denying discretionary review under 28 u.s.c. section 1258.

I will address the technical merits of this statutory interpretation below the jump. As a matter of legal policy, the SG's position hearkens back to Spencer Roane's 1810 view that "the appellate power of the Supreme Court of the United States does not extend to this [Virginia Court of Appeals]." In effect, the SG declared that, so long as the Puerto Rican supreme court denies a writ of certiorari from the Commonwealth's appellate courts, SCOTUS lacks any power to review those appellate courts' rulings on federal law, including federal constitutional law. The SG has carved out an enclave where territorially circumscribed non-Article III courts have the final word on everything from the Sherman Act to the U.S. Constitution.

As a federalism kind of guy, this revival of what amounts to nullification -- i.e., giving subnational jurisdictions the final word on national law -- fascinates me: Is there some latter-day Spencer Roane in the Obama Administration pining to liberate Puerto Rico from SCOTUS's oppressive grip?

But first, the technical merits. The relevant jurisdictional statute, 28 u..s.c section 1258, provides that "?[f]inal judgments or decrees rendered by the Supreme Court

of the Commonwealth of Puerto Rico may be reviewed by the Supreme Court by writ of certiorari.? The SG's brief notes that this wording differs from the analogous grant of jurisdiction to review state-court judgments: 28 u.s.c. section 1257(a) provides that ?[f]inal judgments or decrees rendered by the highest court of a State in which

a decision could be had.? Those last seven words permit the SCOTUS to review intermediate appellate state court judgments when the state supreme court denies discretionary review rather than rule in the merits of a case. Because the grant of jurisdiction over the Puerto Rican supreme court lacks those words, the SG contends that the SCOTUS cannot review decrees and orders from intermediate appellate courts in Puerto Rico. (Of course, the SCOTUS could theoretically review the Puerto Rican supreme court's orders and decrees denying certiorari review -- but these do not raise any federal question, being discretionary decisions about case management rather than decisions on the merits).

One must concede that the SG has a textualist point: There is a difference in wording between the two statutes. Indeed, then-Deputy AG Byron White commented on the difference back in 1961 when section 1258 was enacted, urging that the discrepancy be eliminated. For reasons unknown, Congress never got around to revising section 1258. The SG suggests that this difference in wording was somehow deliberate, but they offer no argument beyond a vague allusion to the "different system" of laws prevailing in Puerto Rico. The SG notes that that such a limit on SCOTUS jurisdiction is not unique: SCOTUS ?may not review by a writ of certiorari * * * any action of the Court of Appeals for the Armed Forces in refusing to grant a petition for review.? 10 U.S.C. section 867a(a). But section 867(a) expressly cuts off review in a military context, where judicial interference with military justice has traditionally been curtailed and where collateral relief, in any case, will allow the SCOTUS to hear every case of importance.

To my knowledge, however, the SCOTUS has never been denied the power to review the decisions of territorial courts, legislative courts, state courts, and other non-Article III tribunals when those decisions rule against a federal right. That's what happened in Puerto Rico: An intermediate Puerto Rican court held that there was no federal due process limit to imposing 15 years' worth of retroactive taxation on a corporation that relied on an earlier letter ruling from the Puerto Rican Department of Treasury that the corporation was tax-exempt. In effect, the SG holds that this decision denying a federal constitutional right is simply unreviewable.

The ghost of John C. Calhoun ought to be celebrating. On the SG's opinion, the Puerto Rican courts have carte blanche to rule against federal defenses -- ERISA, section 301 of the Wagner Act, the Due Process clause, the First Amendment's free speech clause, the Thirteenth Amendment, the Takings clause, you name it -- free from SCOTUS's oversight. As a federalism-lovin' kind of guy, I ought to be celebrating as well.

But even federalism lovers can admit that there can be too much of a good thing. Yes, I know: Puerto Rico is constitutionally unique, suspended between the status of a state and a territory since 1952. I suppose that the SG's position might be defended as a way to vindicate Puerto Rican autonomy from the feds. But even states enjoying full state autonomy, are supposed to bow to SCOTUS's interpretation of federal law, right? Do we really want to exempt Puerto Rico from Martin v. Hunter's Lessee?

If the SCOTUS denies cert, of course, we will never know why. One might think that the SG's revolt against Martin and embrace of the spirit of Spencer Roane deserves a bit more explanation than a tight-lipped cert denial. One might argue, therefore, that the SG's jurisdictional argument against granting certiorari is, in fact, the best reason for granting cert. I like federalism as much as the next guy, but I am not quite sure that I want to go back to the nullifying days of the antebellum period to secure it. But I'd like full briefing and oral argument before SCOTUS before we walk down that path.