Neil Gorsuch

Gorsuch Joins Ginsburg in Decrying a 'Colossal Exception' to the Ban on Double Jeopardy

The Trump appointee is not impressed by the logic of the "dual sovereignty" doctrine: "Really?"

|

Yesterday the Supreme Court declined to reconsider the "dual sovereignty" doctrine, which allows serial state and federal prosecutions for the same crime. Justice Neil Gorsuch dissented, arguing that historical evidence shows the practice is contrary to the original public understanding of the Fifth Amendment's Double Jeopardy Clause. By parting company with all of his colleagues except Ruth Bader Ginsburg, Gorsuch shows once again that he does not hesitate to take a stand in defense of civil liberties and the rights of the accused, even when it means reversing longstanding precedent.

In Gamble v. United States, a man with a felony record who was prosecuted under both state and federal law for illegally possessing a gun argued that convicting and punishing him twice for the same offense qualified as double jeopardy. Seven members of the Court disagreed, citing the familiar but puzzling logic of the dual sovereignty doctrine: Since two "separate sovereigns" had criminalized Gamble's conduct, it constituted two distinct offenses under the Double Jeopardy Clause. Notwithstanding appearances, then, he was not prosecuted twice "for the same offense."

Gorsuch gives that dodge the respect it deserves. "The government identifies no evidence suggesting that the framers understood the term 'same offence' to bear such a lawyerly sovereign-specific meaning," he notes. To the contrary, he says, British common law, the Fifth Amendment's history, contemporaneous legal commentary, and early court cases all indicate otherwise.

"Viewed from the perspective of an ordinary reader of the Fifth Amendment, whether at the time of its adoption or in our own time, none of this can come as a surprise," Gorsuch writes. "Imagine trying to explain the Court's separate sovereigns rule to a criminal defendant, then or now. Yes, you were sentenced to state prison for being a felon in possession of a firearm. And don't worry—the State can't prosecute you again. But a federal prosecutor can send you to prison again for exactly the same thing. What's more, that federal prosecutor may work hand-in-hand with the same state prosecutor who already went after you. They can share evidence and discuss what worked and what didn't the first time around. And the federal prosecutor can pursue you even if you were acquitted in the state case. None of that offends the Constitution's plain words protecting a person from being placed 'twice…in jeopardy of life or limb' for 'the same offence.' Really?"

Even if three additional justices had agreed with Gorsuch and Ginsburg, many cases that look an awful lot like double jeopardy would have continued to pass muster. Under the reasoning of the Court's 1932 ruling in Blockburger v. United States, two offenses are distinct when each "requires proof of a different element." In her dissent, Ginsburg notes that "in prosecutions based on the same conduct, federal and state prosecutors will often charge offenses having different elements, charges that, under Blockburger, will not trigger double jeopardy protection."

Hence a federal prosecutor who pursued hate crime charges against a racist or anti-Semitic mass shooter who was also tried for murder under state law would not have to worry about the Double Jeopardy Clause, since the federal case requires an additional element: The defendant chose his victims "because of" their membership in a racial, religious, or ethnic group. The same would be true if the Justice Department prosecuted police officers for violating someone's civil rights after they were acquitted in state court of using excessive force against him.

But in cases like this one, where the elements of the state and federal offenses are the same, a reinvigorated Double Jeopardy Clause would make a crucial difference. "A free society does not allow its government to try the same individual for the same crime until it's happy with the result," Gorsuch writes. "Unfortunately, the Court today endorses a colossal exception to this ancient rule against double jeopardy. My colleagues say that the federal government and each State are 'separate sovereigns' entitled to try the same person for the same crime. So if all the might of one 'sovereign' cannot succeed against the presumptively free individual, another may insist on the chance to try again. And if both manage to succeed, so much the better; they can add one punishment on top of the other. But this 'separate sovereigns exception' to the bar against double jeopardy finds no meaningful support in the text of the Constitution, its original public meaning, structure, or history. Instead, the Constitution promises all Americans that they will never suffer double jeopardy. I would enforce that guarantee."

NEXT: Trump Threatens Mass Immigration Action Next Week, Though No One's Sure What He Means

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

Please to post comments

95 responses to “Gorsuch Joins Ginsburg in Decrying a 'Colossal Exception' to the Ban on Double Jeopardy

  1. Government Almighty doesn’t give a shit, nor a hoot in Hell, about the USA Constitution or small-government precedents, or long-standing legal traditions. Government Almighty gives a shit only about what Government Almighty wants to do, for its own powers and glories.

    1. …but it is heartening to see a Trump appointee trying to buck the tide. I wonder how long until Der TrumpfenFuhrer will be demanding that Gorsuch should resign?

      1. Fuck off Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf

        1. Hi Satan,

          Destroy any souls lately? It is good to see you being honest enough to call yourself by your own name lately… You’ll be fooling less innocent people this way! You old fool you!

          1. He is NOT Satan. He is in fact Phil, the Prince of Insufficient Light. He resides in the Hell adjacent plane of Heck……

            1. 555, a lesser evil?

              1. Did you know that 333 is the mark of the semi-Christ?

      2. You’re fucking idiotic sometimes. It was hilarious seeing you write about defending constitutional protections while cheering on process crimes against trump.

        1. “…process crimes against trump…”

          Such as? If crimes are being committed against Trump, why is he not defending himself? Who are these criminals who offend against Trump, and why are they not being prosecuted? Do you have ANY links? Or did a few folks merely hurt Trump’s baby feelings?

          1. They are being prosecuted, numbnuts. If you don’t see that yet, you have your head in the sand. You’ll figure it out soon enough.

    2. Hard to believe the Feds and State government would want to charge the same person for the same crime. Next they’ll claim both want top charge your tax on your income.

  2. Gorsuch is exactly what libertarians are looking for in a federal judge. His appointment makes Trump’s election worthwhile notwithstanding all of the TDS on these pages.

    1. Exactly.

      Even still none of these justices discussed how the 2nd Amendment makes any gun control laws, including the laws on silencers, illegal and unconstitutional.

      While that was beyond the scope of the issues of appeal, there would be no appeal necessary if all the gun control laws were struck down by every judge that oversaw the appeal.

      Striking down unconstitutional laws sua sponte

    2. Unfortunately Gorsuch isn’t as contagious as TDS.

    3. I just wish he had picked someone else like Gorsuch instead of the Kav man.

      1. It was a deal to get Kennedy to retire. Kennedy got to select his successor.

        Trump really had no choice.

        Looking back now, Trump would have been off the hook if the Senate did not confirm Kavanaugh for whatever reason. Maybe Senate Republicans were in on the Kennedy move to pick his successor too, which is why those spineless RINOs even voted for Kavanaugh.

    4. I just wish the leftist would stop referring to Gorsuch as a “conservative” as if he were in lock-step with Alito and Roberts. Thusfar, he’s almost a more reliable libertarian / originalist than Thomas.

  3. How was this a 7-2 decision? Is there something I’m missing that supports the decision of the four other originalists?

    1. Roberts and Alito are not Originalists.

      Thomas is and he was wrong to support this but his single vote would not have changed the majority. His main point was about stare decisis being too rigid to fix bad precedent like what led to the outcome in this case.

      Kavanaugh seems to be like Roberts and Alito.

      RBG phoned her vote in from the grave.

      1. Good to know. Also, can I get a recent picture of RBG? Anyone?

        1. From her most recent television spot, with her bio.

          https://gameofthrones.fandom.com/wiki/Night_King

          1. Looking better than ever!!

    2. Really dumb lawyers giving a stupid argument and trying to overturn precedent with that. This should have been an easy win, yet in 170 years the right argument still has not been presented to the justices.

  4. This decision is horrible.

    It allows multiple US states to prosecute a defendant for the same offense because they are “different sovereign”.

    Thomas was wrong on this decision too but his main point was that stare decisis should not be so rigidly followed to create bad outcomes like this one.

    Gorsuch is the best justice at the SCOTUS.

    1. Why should stare decisis even be a factor in this case? Who’s relying on precedent in deciding their behavior? Who would act differently if they couldn’t count on precedent’s being followed in cases like this? The excuse for stare decisis is supposedly that people can arrange their affairs secure in the knowledge that the law affecting them won’t change; who is in that position when it comes to dual sovereignty over crimes? Other than prosecutors, I mean?

      1. Read the opinion.

        Some of the Majority used precedent to uphold dual sovereignty criminal prosecutions.

        Gorsuch pointed out why that is ridiculous since the federal gov or states can sidestep the 5th Amendment Double Jeopardy protection by holding more than one trial to make sure they get the defendant.

    2. It’s quite one thing for to have state and federal prosecutions for the same offense, but multiple states?

      No……. just no…….

      1. And I can really see a bunch of progtard states coordinating to go after various companies they don’t likely, this way. Gun manufacturers, cake bakers, etc..

  5. It’s things like this that make it so very clear that judges care more about quibbling over legal quirks than actually reading the Constitution as a limit on government. The 9th and 10th Amendments, “shall make no law”, “shall not be infringed”, the Commerce Clause, the Necessary and Proper Clause, all have been abused by statist judges who find more pleasure in quibbling for the government’s silver than doing their job.

    1. Hey look you magically appeared in the same thread as your sockpuppet SQRLSY.

      1. I hear you are also Santa. At least to the dyslexic.

  6. The states are hardly “sovereign” in any real sense. Dual sovereignty seems like an oxymoron.

    1. It’s supposed to be parallel or interlocking sovereignty; States and the federal government are supposed to both be sovereigns, but over different subjects.; The Constitution didn’t contemplate this sort of dodge around the double jeopardy clause, because under the 10th amendment, if the federal government could make something a crime, the states couldn’t, and visa versa.

      This sort of double jeopardy is a result of not taking the 10th amendment and enumerated powers doctrine seriously.

      1. This is REALLY really Really bad decision.

        The Majority used the term “sovereign” so much that I don’t see why more than one US state could not try to prosecute a defendant under the same criminal conduct that happens across state lines.

        Computer crimes come to mind. Servers in multiple states, plus the federal government gets involved because multi-state jurisdictions.

        1. Cake baking……….

    2. The states are entirely sovereign actually, it’s the federal government whose sovereignty is smoke and mirrors put up by our founders to give the states one national voice.

  7. No Alex Trebek jokes?

    1. Alex Trebek is no laughing matter.

    2. What is Double Jeopardy?

  8. I think the real problem is the use of the interstate commerce clause to justify federal criminal laws. It’s a patently ridiculous interpretation of the power to regulate commerce. At the very least the federal criminal statutes should directly implicate interstate commerce.

  9. The federal government’s sovereignty is derived from the states. What exactly is the logic that that federal government’s sovereignty is a completely different thing from one of the constituent state’s sovereignty? The federal government is properly understood as the creation of the states, not an entity in it’s own right.

    1. The members of the Supreme Court, like most of the government, are just terrible at their jobs.

      1. No, their jobs, as understood by the people who hired them, is to act as rubber stamps for power grabs.

        Their job description got rewritten back during FDR’s time.

    2. I don’t think that’s right. I would agree that the federal government under the Articles of Confederation was a creation of the states. But there is a pretty strong argument that the federal government created under the Constitution became an entity in its own right and that its sovereignty is derived directly from the people, just like the sovereignty of the states.

      1. We Americans have let/are letting this happen.

        The US Constitution never gave the Federal Government most of the powers that they have now. I mean forcing people to buy products (health insurance) is not even close to being an enumerated power.

        Americans asked for them or didn’t fight strong enough to keep it from happening.

        1. Thank everyone that ever said ‘there oughta be a law…’.

          1. You regularly call for the mass extermination of your political enemies.

            Just so we’re all clear.

            1. One of Tony’s typical distortions. No faggot, I don’t. I am, however, perfectly willing to allow you and your slaver friends to choke our rivers with your dead if you keep on infringing on our God given rights. Which are all violations of the constitution. And the basis for the overthrow of the British government in the colonies and the formation of these United States.

              You’re just like every rapist and slaver. It’s not fair when your intended prey can fight back.

              Of course, you are free to abandon your unholy Marxist beliefs and live in peace with real Americans. Then you will be perfectly safe.

        2. True, but not really relevant to Mickey Rat’s argument that the federal government derives its sovereignty from the states rather than directly from the people.

          At the same time, false because the Constitution is supposed to stop our elected “representatives” from abusing their powers even at our request without needing The People to rise up in armed revolt every single time. Short of that armed revolt, I’m not sure what would could have done to fight more strongly.

          Well, I suppose we could exercise a little collective discipline and vote the bums out. But that’s just crazy talk…

          1. Jury nullification is an easy one that people could do.

            Vote against every tax increase, no matter the reason.

            Vote against every tax regulation change that hides the tax transactions.

            Go to city council, county board of supervisors, state legislature meetings and complain. Contact your representative and complain.

            My local government hates me because I am one of the few residents to show up from time to time and tell them to cut budgets, fire government employees, and stop expanding local government. It does not always work but it works enough.

            1. BTW: These asshole politicians actually think that they are doing a good job if nobody complains.

              No news is good news to these people.

            2. Idiotic blind dogmatism is no way to run a dynamic system.

              1. Then why do you try and insist on that, and vote for people who do exactly that?

      2. He is exactly right about the federal government. And the Constitutional Convention that created the U.S. Constitution was called by the Congress under the Articles of Confederation for the purpose of proposing amendments to the Articles to address the weaknesses it was suffering. They produced an entirely new document instead. The only gray area was the period between when 9 states ratified the U.S. Constitution allowing it to go into effect in revolution, and the remaining 4 states ratified it, as the Articles required an amendment to be ratified unanimously. In either case, however, the federal government was created by the states ratifying a document and constitutionally delegating their authority. And the states could, subject to 3/4 ratifying the matter, terminate or replace the U.S. Constitution at any time through holding a new constitutional convention; that’s the power of a true sovereign.

    3. The People supposedly deposited some of their sovereignty in the state governments, some in the Federal government, and reserved some of it to themselves (9th Amendment.) Such deposits of sovereignty are conditional, else the 13 colonies seceding from Britain would have been illegitimate.

      The “do what I say, dammit!” statists don’t care about such niceties.

  10. This ruling, if carried to its full implications, could result in an unlimited number of trials for the same crime. You could be tried by your city, then your county, then the state, then the feds and then what? The United Nations? The Intergalactic Union of Class M Planets?

    Double jeopardy means what it says. One trial only.

    1. Yup. I have always been against mistrials resulting in a re-do for the state too. Unless it was the defendant who didnt give the state a fair shot at prosecuting the defendant.

      The government gets one fair crack at you for criminal charges.

    2. Nope, only foreign countries, states, and the federal government are separate sovereigns under the ruling, and the Double Jeopardy clause has been held to apply to the states. And it’s fair that trial in a foreign country with different legal standards should not be a bar to re-prosecution in the U.S. (unless prevented by a treaty or something like that). The problem with the decision is the federal government’s dubious claim to separate sovereignty, which has been mostly accepted as a given but really has no legal basis.

  11. ” And if both manage to succeed, so much the better; they can add one punishment on top of the other. ”

    That’s a good point I haven’t seen before.

    “in prosecutions based on the same conduct, federal and state prosecutors will often charge offenses having different elements, charges that, under Blockburger, will not trigger double jeopardy protection.

    Hence a federal prosecutor who pursued hate crime charges against a racist or anti-Semitic mass shooter …”

    Great. Encourage the feds to spin every violent crime into a part of the race war. We don’t have enough racebaiting as it is.

    And notice the “oopsie” on the phrasing. A “racist or anti-Semitic shooter”. Having racial prejudice is treated as prima facie evidence that the shooting was a hate crime.

    1. As there should be no such thing as a hate crime, what difference does it make how it is defined.

      1. It’s a progtard thing. It was essentially supposed to be a sympathetic way to introduce thoughtcrime into our legal system. Kind of like a gateway drug. Except in this case it’s real.

        1. ^ This.

          Meanwhile states have been getting rid of mens rea for most other crimes.

          Now police can make mistakes of what is a violation of the law and arrest you. You dont even know that you were breaking the law and still be guilty.

          Lawyers and politicians have so twisted the system.

        2. Meh. Law takes into account what you’re thinking when you murder someone.

          1. Yes, the fact that you are thinking. But it matters not (at least, before the advent of hate crime) the reason you have for murdering someone. The difference is intent vs motive.

              1. Gee, shitbag, even a caveman can get that. Try again, thinking slowly.

                1. I’m no Judge Reinhold, but I’m pretty sure motive is considered in murder cases.

                  1. Yeah, as an element of probable cause for an arrest, or circumstantial evidence. Not as an element of the crime itself.

                    Seriously Tony, it shouldn’t make a difference in prosecuting someone who beats you half to death for being a flaming homo, or that just being an annoying colostomy bag.

              2. Murder (in most states) takes into account your intent – did you intend to kill a person. It does not rely on your motive – why did you kill them.

                Example: you had a bad day at work, a guy cut you off on the way home, so you pull out your gun and kill him. At trial, “you had a bad day at work” is immaterial to the charge – your motive doesn’t matter. You firing your gun at him matters, and your intended result matters – if you intended to scare him only, probably murder 2, while if you intended to kill him, murder 1. Evidence if your emotional state (you had a bad day at work) is evidence that you didn’t intend death, but just let your rage out.

                Example: you go shooting in the hills, your bullet carries over a hill and kills another man. It turns out that man was the one who’s been cheating with your wife, which you learned about that morning, and whom you wish dead. You intended to fire the gun. You did not intend to hit anyone (you’re just a crappy shot). But you’re happy you killed him. Motive doesn’t matter – you wished for his death, but you didn’t intend to kill anyone, so murder 2 in most states (maybe murder 1 if unlawful discharge of a firearm + death triggers the felony murder rule in your jurisdiction. Your laws may vary).

  12. I don’t care what the historical texts say so much, but it has always smelled fishy to me.

  13. When RGB and Gorsuch both disagree, with generally the same objections, that seems a good thing.

  14. I love the collegiality of the independent thought. Do you love states’ rights or federal overrule? Do you stand with precedent or Constitutional originalism? Given the apparent shift on the Court, everyone seems to be a lot of thought toward their ruling. I think its good that the outcome of a Presidential election doesn’t send the Court carrying in a certain direction.

  15. Why don’t these fascists add county and city sovereignty to this?

    1. Cities and counties are _not_ sovereign. They are divisions of a state, and have power only as granted by the state. They may have local ordinances, but only as allowed by the state constitution and laws. And I’ve never heard of a local ordinance creating a distinct major crime – if the city or county DA is trying you for a felony, it’s under a state law. The local courts act under state authorization, so if you are acquitted in a local court the state Attorney General does not get another chance. (In most states, if the state AG doubted the resources, competence, or intentions of a local DA, he could have intervened and taken the case away from the local DA before the trial began.)

      But the states and the federal government are separate, with separate jurisdiction (except where the feds have overstepped the bounds of the Constitution). In the first dual sovereignty cases I can recall, in the 1960’s, biased juries in state courts acquitted men of murdering blacks or civil rights workers. The prosecution and/or judge might have connived in this by presenting the evidence poorly or not seeking unbiased jurors… Federal prosecutors then tried the killers for violating the civil rights of their victims – a different and lesser crime than murder, although it was for the same act. So technically, they weren’t tried twice for the same crime.

  16. “Seven members of the Court disagreed, citing the familiar but puzzling logic of the dual sovereignty doctrine: Since two “separate sovereigns” had criminalized Gamble’s conduct, it constituted two distinct offenses under the Double Jeopardy Clause. Notwithstanding appearances, then, he was not prosecuted twice “for the same offense.”

    The retards had to have rich parents to get them past the second grade.
    There are cows on Miller’s farm that can do a better job of reading the US Constitution than these mentally crippled worms.

  17. the REAL travesty is that FedGov are actually prosecuting crimes. There s NO AUTHORITY for them to be prosecuting the sorts of normal criminal activity evident in this case. FedGov are NOT to be meddlng in criminal activity. That’s left to the States.

    1. In wholehearted agreement.

      But alas, politicians have no concern whatsoever about that. Neither do SCOTUS justices. I think part of the problem resides in the fact that individual state governments have no voice in the affairs of the federal government. This has been the case since the ratification of the abominable 17th amendment.

      Federalism has been eroded. Federal lawmakers are now invading the sacred ground of the states, totally unconcerned with their blatant unconstitutionally.

    2. And that’s why the whole dual sovereignty issue became a thing, when the feds started making a federal case out of everything.

      But what interests me is that if a single act can be treated as two different crimes by two different sovereigns, why can’t a single act be treated as two different crimes by the same sovereign? Let’s say the state makes bank robbery a crime, but they also create the separate crimes of illegally taking money from a financial institution, wrongfully absconding with the assets of a third-party safeholder, and criminally appropriating cash from a cash-handling business? So you get charged with bank robbery and get found not guilty, the state then charges you with the completely different crime of illegally taking money from a financial institution, and so on. How many bites of the apple are they allowed?

      1. Fed intervention was largely a product of Jim Crow and unequal application of the law. Black man looks at a white woman results in a lynching. White lynch mob murders a black man results in three hots and a cot for a week, and then a parade when they’re officially exonerated.

        How do you prevent that travesty without federal intervention, either in the state operations (ex: charge prosecutors directly) or in criminal prosecutions? I agree the end result is bad, but how do we address the prior bad state without getting into today’s mess?

        1. You assume that federal law is more trustworthy than state law. In your example this may be true, but it certainly is not always true. Take the gun restrictions going on today, for example. Federal laws regarding guns are far worse than what some states would pass for themselves (Texas). Of course, not in crazy California, but the point is that the federal government is not always dependable (in fact it is quite frequently much worse than most state governments).

          In the end, we should, believe it or not, just stick with the constitution. What is not specifically delegated to the federal government in article I section 9 is a state issue. If you don’t believe it just read the tenth amendment. Politicians, it seems, aren’t to familiar with it.

  18. “Hence a federal prosecutor who pursued hate crime charges against a racist or anti-Semitic mass shooter who was also tried for murder under state law would not have to worry about the Double Jeopardy Clause, since the federal case requires an additional element: The defendant chose his victims “because of” their membership in a racial, religious, or ethnic group.”

    Well… This is alarming. Coming from Jacob Sullum, I was expecting a little better. I guess thought policing just isn’t such a big issue anymore; well, with “reason” that is.

    I get the death penalty instead of life behind bars because I’m a racist. Great, this country’s really taken Thomas Jefferson’s words to heart: the state must always keep separate the actions of a man and his opinions.

    1. The solution to this is that when it’s not a sham prosecution, the defendant gets collateral estoppel against all other prosecuting entities – but estoppel only goes one way.

      So in Sullums example, the defendant gains estoppel against the federal government for any charge that would require a finding that he murder someone (assuming the state court acquitted), and in his example would prevent a prosecution: the Fed can’t prove he murdred someone because of race when they’re estopped from arguing that he murdered them at all.

  19. Ok, admit it, who animated Ginsburg’s dead hand? Because that dry little husk of an authoritarian certainly doesn’t usually oppose state power.

  20. As an addendum to the story, while I appreciate Justice Gorsuch’s principled stance, I do want to see Paul Manafort doubly prosecuted in NY State Court. Any American who has a history of anti-Ukraine-ness is a puppet profiteer and not one to worry of concern about double jeopardy. I don’t think Trump and Manafort were connected very closely, but we kind of need to go there.

    1. Anybody who describes human beings as “profiteers” is either a Nazi or a communist. So: f*ck off, slaver!

    2. People in business seek profits by default. WTF else do you think they’re in business for?

  21. The trouble with the Gorsuch approach is – what do you do when there are two sovereigns each of whom claims jurisdiction ? Who is to step aside ? If France tries someone first, then the US has to step aside, because the French got in first ? The French should step aside because the US has more tanks ?

    The problem in the US system is that the States are not really sovereigns. They are subordinate political authorities, albeit ones which have retained a measure of independence from pre-federal days. In such a case it’s easy enough to conclude that federal jurisdiction should trump State jurisdiction.

    And if, even within a wholly US context, if the Gorsuch rule is not federal > State, but first mover wins, then you’re going to finish up with a mess. Not to mention plenty of corrupt local politicians giving themselves federal immunity by organising local charges and a quick local not guilty verdict.

    1. Actually, I’d argue it the other way around. The states are the real sovereigns here. The federal government, on the other hand, is the recipient of constitutionally delegated state authority. There are a number of ways to prove this, including if you consider the U.S. Constitution cannot function at all without at least one state to back it up. But as you can also see in my separate post below, it doesn’t matter for this issue.

      1. But you make a good point. Without the independent sovereignty of states there is no federal government. Think how our government under the constitution was initiated into operation. It was ratified by the states, unanimously. Then, for the following decades, new states joined as they independently chose to apply for stateship.

  22. In this case, I think the majority is quite wrong and Gorsuch makes the best case why it is wrong. Though I am shocked that neither the lawyers nor the justices know how to show that federal and state prosecution of the same crime is Double Jeopardy. I could give a better argument than any of them the federal and state governments are the same sovereign, without resorting to the silliness used instead in this case that “sovereignty belongs to the people,” which is too broad and generalized.

    But even so, the question of whether they are the same or a different sovereign, and whether it is the same or different offense, does not matter. The dual court system that we have in the U.S., in which state courts can decide federal law questions, and federal courts can decide state issues as well, also uses the uses the same evidentiary standards for civil and criminal matters. For these reasons, no explanation has been provided why a single criminal trial with a combined list of federal and state charges in one of the court systems would not be sufficient rather than resorting to wasteful and unjust double prosecution.

    Duh! Yet, none of the precedents, nor any of the lawyers in the briefs or arguments, nor any of the justices at any level of the appeal process, even pondered to ask that question. Maybe next time …

    1. And simultaneous prosecutions: one jury, both the state and fed get to present, and double defense counsel paid by the prosecution.

  23. It is sad when RBG is right about something, and all the conservative judges (but one) are wrong…

  24. Regarding comment in the above article, it sounds as if a majority of The Supreme Court are o.k. with what might otherwise be described as “conspiracy”. This refers to “cooperation” between federal and state prosecutors, and has a rather bad smell to it.

  25. […] In the case of Gamble v. United States, the Court decided by a vote of 7-2 that the “dual sovereignty” doctrine withstands constitutional scrutiny. Only Justices Neil Gorsuch and Ruth Bader Ginsburg disagreed. […]