MY FIRST SUPREME COURT ARGUMENT ... AND THEN WHAT HAPPENED.

• Author: Unikowsky, Adam G.

My first Supreme Court argument was in Puerto Rico v. Sanchez Valle. (1) The case concerned the dual-sovereignty exception to the Double Jeopardy Clause. As every schoolkid learns, the Double Jeopardy Clause prevents criminal defendants from being tried twice for the same crime. As not every schoolkid learns, that rule does not apply when the successive prosecutions are by different sovereigns. The Supreme Court has held that states are different sovereigns from the federal government--which means that if a person's conduct violates both federal and state law, he can be separately tried and sentenced in both federal and state court. (2) In Sanchez Valle, the question presented was whether Puerto Rico--a U.S. territory--was a different sovereign from the United States, such that successive prosecutions by the federal government and Puerto Rico for the same conduct did not violate the Double Jeopardy Clause.

I could not have asked for a better first Supreme Court case. Sanchez Valle presented a profound question of constitutional law: What constitutes a sovereign? It required a deep dive into history that included, for instance, comparing the creation of the Puerto Rico Constitution with the events surrounding the states' entrance into the union. It was both symbolically important and of practical importance to the administration of justice. And, of course, the case was of the greatest practical importance to my two clients, who faced years of additional imprisonment if Puerto Rico was permitted to prosecute them for crimes for which they had already served time. It was an incredible privilege to litigate the case in the Supreme Court.

Predictably, I prepared obsessively for the oral argument, doing three moot courts and spending most of my waking hours figuring out how I would respond to off-the-wall questions. The oral argument itself was a blur. I got out my first line--"Under the Constitution, states are sovereign, but territories are not"--which in retrospect might have been a bit trite. I got out a few more words and then the questions began. As in many a Supreme Court argument, my experience consisted of listening nervously to often lengthy questions that I wasn't sure I understood; stammering out a few words in response; and then being interrupted with another lengthy question. My fifteen minutes went by very quickly, but I sat down thinking that I hadn't affirmatively lost the case for my clients. In the end the Court went our way by...