Is it possible that U.S. territories could soon become states? Why does the Supreme Court hear fewer and fewer cases every year? Should judges be elected in all jurisdictions, or appointed based on merit?
These were some of the timely topics debated Tuesday by a lineup of distinguished speakers at the second annual District Court Conference on St. Thomas, including former Supreme Court Justice Sandra Day O’Connor.
The conference, which was hosted by the Marriott Frenchman’s Reef, also featured (among others) Erwin Chemerinsky, dean of the University of California-Irvine School of Law; and 1st Circuit Appeals Judge Juan R. Torruella.
Most of the 200-plus conference attendees hailed from the 3rd Circuit Court of Appeals, which encompasses Delaware, New Jersey and Pennsylvania. Theodore McKee, currently chief judge of the 3rd Circuit, made an educated guess during the opening presentation as to how the territory got lumped into this circuit.
"It’s one of the great mysteries of the universe," joked McKee, whose research pointed to the fact that the 3rd Circuit was the least busy at the time the U.S. Virgin Islands was purchased from the Danish in 1917, and the fact that Philadelphia, which lies in the heart of the 3rd circuit, is a major seaport for shipping traffic to the islands.
McKee reminded the audience that although the territory is technically part of the 3rd Circuit, it does not rule on matters here unless there is a manifest error of law. Otherwise it defers to the judgment of the V.I. Supreme Court, which can appeal cases directly to the U.S. Supreme Court.
O’Connor, the first woman on the U.S. Supreme Court, served from 1981 until she retired in 2006. Attired in a striking blue jacket, she answered questions that had been submitted in advance by some of the attendees, and which were read to her by District Court Chief Judge Curtis V. Gomez.
When asked whether there were any cases she would rule differently on now than she did in the past, O’Connor, still feisty at almost 80 years old, quipped "If there were, I wouldn’t tell you!"
But she was willing to speculate on why the court heard only 73 cases in 2010, compared to more than 100 per year in prior decades.
"Maybe district courts are getting it right and not sending as many cases up to us," she said. "Or maybe people are getting smarter and not litigating as often. Also, many petitions are repetitive now, and compared to when I started there are fewer cases to be heard which deal with the unique and novel issues that divide lower courts."
O’Connor also weighed in on the bitter partisanship that is currently dividing Congress and attributed it in part to the fact that legislators no longer socialize together during weekends in Washington.
"The partisan division was not as pronounced in my time as it seems to be today," she said. "I think what’s missing is face time between legislators. Today they only spend Tuesday through Thursday in Washington, and the rest of the time in their home state. They don’t get to know each other as people. They don’t even know the members of their own party, let alone those on the other side of the aisle. That makes it difficult to negotiate and come to agreement."
Since she retired, O’Connor has devoted herself to several causes, including promoting civics education in high schools, and eliminating the system by which judges are elected to office instead of appointed based on merit.
"Only 20 states choose judges based on merit, the rest by election," she said. "Election is not a system that works well. Some states have 30 to 50 names on each ballot. Do you think the voters know anything at all about these candidates on which to make an informed decision? And to have money supporting these candidates is outrageous."
Inevitably some of the questions addressed to O’Connor related to being a woman on the court, and what she found most challenging about being a justice.
"Everything," she replied to the latter question. "Initially, when I joined the court, just reading through the petitions of certoriari took more time than I could handle. Later I could do it in no time at all. Time is precious: time to read, think and understand."
The Supreme Court was also the main topic of Chemerinsky’s presentation. He offered a roundup of the court’s more interesting legal trends of the last year, from decision lengths to Federalism.
"Word and page counts should be imposed on the U.S. Supreme Court," he said jokingly, echoing O’Connor’s words. "Decisions of 150 and 220 pages were handed down last year, which makes them difficult to summarize for my Constitutional Law class."
The fact that three cases touching on ineffectiveness of counsel came up in the last year was a trend Chemerinsky found noteworthy, and he predicted it would have ramifications for the future. In all three of the cases the court ruled that defense counsel was negligent or failed to adequately present a defense.
In the first, a defense lawyer wrongly advised his client, an immigrant, that pleading guilty would not have adverse effects on his immigration status, which led to him being deported. In the second, defense counsel failed to present evidence of a client’s mental illness and military service, which could have resulted in a different outcome of his trial. And in the third, counsel failed to present evidence of a defendant’s brain damage as a mitigating factor during a sentencing proceeding.
"These ineffective assistance of counsel cases open the door to a whole lot of other claims," he said. "Defense lawyers could now be liable if they don’t warn their clients of all manner of collateral damage."
As communications technology develops and changes, the law must be interpreted to accommodate it, which happened in a Supreme Court case last year that raised Fourth Amendment issues.
In City of Ontario v. Quon, a police officer argued that his privacy rights were violated when his superiors read personal text messages he had sent on his work-issued cell phone. The Supreme Court ultimately argued that although the officer had an expectation of privacy, the police department’s review of his messages complied with city policy allowing them to monitor company-issued equipment, and did not constitute an unreasonable search.
"This case illustrates the traditional deference of the court to the government, when the government is the employer," Chemerinsky explained.
Chemerinsky also appeared on panel which discussed whether Constitutional privilege can be claimed by citizens of the U.S. Virgin Islands and other territories, in the absence of an explicit extension by Congress.
Because of a series of early 20th-century Supreme Court decisions known as the "insular cases," full Constitutional rights do not automatically extend to territories, only states. Territories only have partial protection of the Constitution.
Torruella, a 1st District federal judge from Puerto Rico, is an expert on the insular cases and explained that the rulings were based on racism and a desire to keep the territories — and their "undesirable" inhabitants — at arm’s length.
"The same court that decided the insular cases also decided Plessy v. Ferguson," he said, referring to the infamous Supreme Court case in 1893 that upheld racial segregation laws under the doctrine of separate but equal. "The prevalent views of the time can be seen in the words of Simeon Baldwin, who said ‘to give the … lawless brigands that infest Puerto Rico the benefits of citizenship … would be a serious obstacle to the maintenance there of an efficient government.’"
Many legal scholars and academics would like to see the terroritories get full equal status, but the outlook is not overly positive. Chemerinsky said that apathy plays a part.
"Because the District of Columbia has a similar status, we have simply accepted this problem from the early 20th century," he said. "It’s stare decisis — it’s always been that way, since before most of us were born. Also, there’s too small a constituency to mold public opinion and advocate for statehood."
But he noted that recent world events bolster the argument that it’s time to change. "What’s happening between Israel and the Palestinians provides a model," Chemerinsky said. "How can any nation consider itself a democracy if it denies representation to a substantial minority of its population?"
"In the last five years a lot of law review articles have been written on the status of Puerto Rico and other territories," he continued. "Maybe if more scholarly attention is paid to this, a change will be forthcoming. After all, the U.S. has always had territories, with the intention that they’d eventually become states."
He ended by pointing out some recent legal challenges to the insular case precedents. In 2005, Igartua De La Rosa v. United States unsuccessfully challenged the prohibition on Puerto Ricans from voting in Presidential elections.
However, an en banc petition related to the case is pending in the 1st Circuit court. This petition, which is being shepherded by Torruella, maintains that Puerto Rico has a viable claim to equal voting rights under the International Covenant on Civil and Political Rights.