The Supreme Court wrestled Thursday with complex questions about what protections the Constitution’s ban on “double jeopardy” provides to individuals, and whether those protections mean the justices should overturn the longstanding exception to that rule. The exception, recognized since the 1800s, allows “dual sovereigns,” in this case a state and the federal government, to charge a person for the same offense.
Terance Gamble is asking the court to end the exception, which would prevent the federal government from charging him for the same weapons possession crime that he already has pleaded guilty to under Alabama law.
The logic behind the so-called dual sovereignty exception is that they are not, in actuality, the same crime, even though the charges may come out of the same actions. How is that possible? As separate sovereigns, the state and federal governments have different and independent interests, and thus the crimes for which a person is charged by those different sovereigns are treated as different crimes.
After the court’s nearly 80 minutes of arguments Thursday morning, Gamble’s lawyer did not appear to have convinced a majority of the court to take his position — although an outcome in his favor remained a possibility, albeit a narrow one.
And while most coverage of the case leading up to the arguments related to whether a decision for Gamble could have the effect of limiting the possibility of subsequent state prosecutions should President Donald Trump pardon anyone for federal crimes charged by special counsel Robert Mueller or other federal prosecutors, neither man’s name came up on Thursday.
The partisanship implied in most of those discussions also was missing from Thursday’s arguments.
The questions most skeptical of the governments’ position — both the federal government and Texas, representing several states, had lawyers in court on Thursday defending dual prosecutions — came from Justices Clarence Thomas and Ruth Bader Ginsburg, who previously expressed interest in having the court revisit the topic, as well as Justice Neil Gorsuch.
“I had thought in this country that the people were the sovereign and that … exercise of sovereignty was divided, not multiplied,” Gorsuch said to Eric Feigin, the assistant to the solicitor general. “It is awkward, isn’t it, to say that there are two sovereigns who get to multiply offenses against you?”
On the other side, however, it was Justices Samuel Alito, Elena Kagan, and Brett Kavanaugh who were most skeptical of Gamble’s claim.
“Part of what stare decisis is,” Kagan told Gamble’s lawyer of the court’s doctrine of adhering to past precedents, “is a kind of doctrine of humility where we say we are really uncomfortable throwing over 170-year-old rules that 30 justices have approved just because we think we can kind of do it better.”
In other words, some of the more liberal justices were skeptical of opposing sides of the question and some of the more conservative justices — including Trump’s two appointees to the court — were similarly skeptical of opposing sides of the question.
Of the remaining three justices — Chief Justice John Roberts and Justices Stephen Breyer and Sonia Sotomayor — none seemed settled on Gamble’s argument, and Breyer, as the argument wore on, appeared to settle closer to the governments’ side.
Roberts was the most in flux of the three throughout the argument, asking Gamble’s lawyer at one point if the court hadn’t already “been through all of this” in prior cases — but then later telling the federal government’s lawyer that he thought Gamble’s lawyer was right that “we have not had a full consideration and exposition of the issue” in prior cases.
Much of the expressed concern from the governments related to what the change advocated for by Gamble would mean for cooperation between state and federal law enforcement officials. Multiple justices, including Roberts, appeared to share that concern — with several questions relating to whether ending the exception and barring the possibility of dual prosecutions would result in a “race to courthouse” between state and federal officials.
For her part, Sotomayor — normally a vigorous questioner — spoke up only once, to question the “logic” of Gamble’s argument.
The arguments over the issue reached back to before the country’s founding, looking at how English law — or the “rumor” of a certain English case, as Alito characterized a court decision for which Gamble’s lawyer later acknowledged no opinion has ever been found — treated the question.
The questions proceeded throughout US history, from prior Supreme Court cases addressing the issue all the way up to Gamble’s 2015 charges of being a convicted felon in possession of a firearm. After being charged with the Alabama offense of being a felon in possession of a firearm, he also was charged with the federal version of the same crime.
Gamble unsuccessfully challenged the federal prosecution in a federal district court, then pleaded guilty to both crimes and was sentenced separately — though he was to serve the federal sentence, which was longer, concurrently with the state sentence. His appeal of that federal sentence was before the justices on Thursday.
The court is expected to issue a ruling in the case by June.
As for the potential fallout for Trump and his allies, even if the court sides with Gamble, it would mean only that the Double Jeopardy Clause would prevent state prosecutions for the same crime — not any prosecution of other crimes arising from the same conduct. Given the multitude of criminal offenses, it’s unlikely that a presidential pardon would prevent state prosecutors from filing any charges.