Gorsuch and Thomas on Double Jeopardy and Stare Decisis


The Fifth Amendment to the U.S. Constitution provides that “No person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb.” The Double Jeopardy Clause, as it is known, thus prohibits the government from prosecuting a criminal defendant a second time for the same offence after he has been convicted or acquitted of that offence. However, under the longstanding dual-sovereignty doctrine, which typically comes into play where the federal government and a state want to prosecute the same conduct, double jeopardy does not apply where the second prosecution is by a different sovereign.

The question before the Justices in Gamble v. United States, argued in December 2018, was whether the Supreme Court should overrule the dual-sovereignty doctrine. It's a question that ultimately comes down to what the Double Jeopardy Clause mean by "the same offence?"

On June 17, the Justices decided the case in a ruling, authored by Justice Samuel Alito, that reaffirmed the separate sovereigns rule and relied heavily upon the doctrine of stare decisis. Justice Clarence Thomas concurred in the Court's judgment while expounding on his view of stare decisis. Justices Ruth Bader Ginsburg