Monday, June 17, 2019

The Court Was Right to Reaffirm Separate Sovereigns in Gamble, But it Says Two Questionable Things En Route

By Michael C. Dorf

In Gamble v. United States, the Supreme Court rejected an invitation to overrule the longstanding principle according to which the Double Jeopardy Clause of the Fifth Amendment does not apply to a federal prosecution following a state prosecution. The particular case involved a federal felon-in-possession-of-a-firearm prosecution following a conviction on state charges for the same conduct, but Justice Alito's 7-2 majority opinion reaffirms the principle in its entirety. It applies regardless of whether the state or federal trial occurs first and regardless of whether the first trial ended in conviction or acquittal (or some other disposition following the attachment of jeopardy).

There is an if-it-ain't-broke-don't-fix-it quality to the majority opinion. The Court recognized the separate-sovereigns principle over 170 years ago, and neither of the petitioner's chief arguments carries the heavy burden needed to overrule such a longstanding precedent. Justice Alito shows that there is very little basis for the petitioner's claim based on the original understanding. He also explains why incorporation of the Double Jeopardy Clause against the states via the Due Process Clause of the Fourteenth Amendment did not undercut the basis for the separate-sovereigns principle.

Justice Alito also explains the functional basis for the rule. The state and federal governments serve different constituencies with different priorities. Neither should be able to deprive the other of its opportunity to vindicate its interest in law enforcement via an incompetent or corrupt prosecution resulting in acquittal or via a sentence that the other jurisdiction regards as too lenient following a conviction. To be sure, as Justices Ginsburg and Gorsuch emphasize in their respective dissents, the separate-sovereigns principle can result in unfairness. If one were writing on a clean slate, perhaps that would justify a different approach, but in light of stare decisis, the concerns that the dissenters raise must be addressed through policies of forbearance and comity.

Yet while the bottom line and most of the reasoning of Justice Alito's majority opinion make sense, he makes two points that strike me as unpersuasive. Below I discuss each briefly, before adding a comment about the debate between majority and dissent about the nature of the Union and another about Justice Thomas's concurrence.

(1) Text. Before discussing original understanding, precedent, and functional justifications for the separate-sovereigns principle, Justice Alito focuses on the text. The Double Jeopardy Clause forbids multiple prosecutions for the same "offence," not the same conduct, he notes, "an 'offence' is defined by a law, and each law is defined by a sovereign." QED, right?

Well, maybe not. Both dissenters push back on the idea that the US and states are different sovereigns for double jeopardy purposes -- more about that in (3) -- but there is a threshold objection towards which Justice Gorsuch gestures.

Suppose that Congress at different times enacts two separate laws and puts them in two code sections but that the elements of Provision 1 render it a lesser included offense of Provision 2. Under the test established by Blockburger v. US, the Double Jeopardy Clause bars a defendant's trial on charges of violating Provision 1 for the same alleged conduct that led to a prior prosecution for violating Provision 2. So the fact that there are two laws defining offenses does not mean that there are two separate "offences" for purposes of Double Jeopardy. And if that can be true for prosecutions by the same sovereign, then it could in principle be true for prosecutions by different sovereigns.

(2) Original Meaning. Justice Alito notes that the petitioner's argument based on original understanding relies extensively on a single 1677 case involving a fellow named Hutchinson but that there is no surviving report of the case and that much of what we do know about the case suggests that it and subsequent cases cut in favor of the separate-sovereigns principle. He then takes note of an argument made by the petitioner. Justice Alito writes for the Court:
Whatever the English courts actually did prior to adoption of the Fifth Amendment, by that time the early English cases were widely thought to support his view. This is a curious argument indeed. It would have us hold that the Fifth Amendment codified a common-law right that existed in legend, not case law.
But why is this argument curious as a matter of original public meaning? Suppose you are reading a journal of the proceedings of an astronomical society from 1791 and you come across a calculation of the orbit of "the outermost planet in the solar system." You wonder whether the astronomers were discussing Neptune or Pluto, but find yourself puzzled, because the calculations are way off for either one. Then it hits you. In 1791, the most distant known planet was Uranus, which was discovered ten years earlier. Neptune would not be discovered until 1846. The most sensible reading of "outermost planet in the solar system" in this context is Uranus.

That's not a perfect analogy, of course, but it underscores a basic point that a reconstruction of original public meaning properly takes account of what the public thought, not necessarily of what was true.

(3) Nature of the Union. The dissenters emphasize that the US and the states together make up a single legal system. They thus distinguish application of the separate-sovereigns principle as applied to truly foreign cases. The debate is reminiscent of a debate between the majority and dissent in the 1995 case of US Term Limits v. Thornton, in which a majority invalidated a state's effort to place term limits on its congressional delegation. The majority there argued that the People of the US as a whole created the Union, whereas the dissent said it was the People of the several states. In Gamble, Justice Alito cites a key line from Justice Kennedy's concurrence in U.S. Term Limits, though he quotes a later majority opinion quoting the line, rather than the U.S. Term Limits concurrence itself. The line goes: "The framers split the atom of sovereignty."

That's catchy, but the debate over the nature of the Union in Gamble seems far too abstract. Both the majority and the dissent are partly correct. States exercise some but not all aspects of sovereignty. The real issue ought to be whether, as a functional matter, it makes sense to treat the states as sufficiently separate from the federal government to trigger the separate sovereigns principle.

(4) Justice Thomas on stare decisis. Give Justice Thomas a point for open-mindedness. Three years ago he joined a concurrence by Justice Ginsburg calling for the Court to re-examine the separate sovereigns principle. After hearing the arguments, he concluded that the case for overruling was not persuasive.

Justice Thomas should have stopped there. Unfortunately, in Gamble he went on to write an extensive concurrence arguing against stare decisis. Among other things, he suggests that precedents that were decided using a methodology other than originalism are not entitled to any respect. He allows for the possibility of reasonable disagreement among originalists but not otherwise.

Although there is nothing especially new about Justice Thomas's call for the abandonment of precedents with which he disagrees, it is curious that he chose the occasion of this case -- in which he agrees with the Court's disposition based on precedent -- to critique its approach to precedent. There is at least some irony in the fact that Justice Thomas criticizes the existing doctrine on precedent for exceeding the limits of judicial power in the course of writing what might be fairly described as an advisory opinion.