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  • Ashley Baker

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 and Neil Gorsuch dissented.


Terance Gamble pled guilty to violating an Alabama law that prohibits persons convicted of a violent crime from possessing a firearm. The Alabama court sentenced him to a ten-year period of imprisonment, which it suspended save for one year. In a parallel proceeding, Alabama federal prosecutors indicted Gamble for violating a federal statute that prohibits felons from possessing firearms. The prosecutions were based upon the same conduct – Gamble was previously convicted of a felony for second-degree robbery and possession of a 9-mm handgun.

Gamble argued that the federal prosecution was barred because it violated his Fifth Amendment right against being placed twice in jeopardy for the same crime. After the district court rejected the argument, Gamble pleaded guilty to the federal offense, and the court sentenced him to 46 months of imprisonment.

On appeal, the United States Court of Appeals for the Eleventh Circuit affirmed the district court’s decision “unless and until the Supreme Court overturns” its dual-sovereignty doctrine.

Dual-Sovereignty Doctrine

In a 7-2 decision, Justice Samuel Alito, writing for the Court, affirmed the doctrine of dual sovereignty. Accordingly, where a state criminalizes conduct that the federal government also criminalizes, the transgressor can be prosecuted by state prosecutors under state law and by federal prosecutors under federal law, and double jeopardy does not apply.

As a constitutional matter, the same conduct does not constitute the same “offence” under state and federal law, Alito wrote, because “an ‘offence’ is defined by law, and each law is defined by a sovereign. So where there are two sovereigns, there are two laws, and two ‘offences.’”

Because we live in a federal republic, Alito elaborated, “both the Federal Government and the States wield sovereign powers, and that is why our system of government is said to be one of ‘dual sovereignty.’” "[E]ach sovereign has an interest to vindicate.”

Justice Gorsuch’s Dissent

In a thoughtful dissent, Justice Neil Gorsuch took a libertarian aim at what he perceived as a statist result: “A free society does not allow its government to try the same individual for the same crime until it’s happy with the result," he wrote. "Unfortunately, the Court today endorses a colossal exception to this ancient rule against double jeopardy.”

Justice Gorsuch explained that “‘[f]ear and abhorrence of governmental power to try people twice for the same conduct is one of the oldest ideas found in western civilization,’” from Athens to Rome and from the Old Testament to "later church teachings."

Along with making the historical case for a plain reading of the Double Jeopardy Clause, Justice Gorsuch expressed the legal and moral sentiments of a criminal defense lawyer:

"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 offence. 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?”

Stare Decisis and Justice Thomas’s Concurrence

Although the central issue in Gamble was the continued viability of the dual-sovereignty doctrine, the doctrine of stare decisis loomed large. Citing "170 years of precedent" affirming the dual-sovereignty rule, the Court relied upon the principle justifications that animate stare decisis for reaffirming it: (1) “‘the evenhanded, predictable, and consistent development of legal principles’”; (2) “‘reliance on judicial decisions’”; and (3) the promotion of “‘the actual and perceived integrity of the judicial process.’”

In response, Justice Gorsuch observed that “blind obedience to stare decisis would leave this Court still abiding grotesque errors like Dred Scott v. Sandford, Plessy v. Ferguson, and Korematsu v. United States.” (For non-lawyers, a cursory Google search reveals how truly dreadful were the holdings in these since-repudiated decisions.)

It was Justice Thomas, however, who while concurring with the Court's result, launched a full-blown textualist assault on the prudential doctrine of stare decisis. The justice reasoned that “the stare decisis standard does not comport with our judicial duty under Article III because it elevates demonstrably erroneous decisions – meaning decisions outside the realm of permissible interpretation – over the text of the Constitution and other duly enacted federal law.”

Stare decisis has its pedigree in the unwritten common law of England,” Justice Thomas explained, and it made eminent sense for early American common-law courts to rely so heavily on precedent, where “common-law judges were tasked with identifying and applying objective principles of law – discerned from natural reason, custom, and other external sources – to particular cases.”

Today, however, “federal courts primarily interpret and apply three bodies of federal positive law – the Constitution; federal statutes, rules, and regulations; and treaties. That removes most (if not all) of the force that stare decisis held in the English common-law system.” In other words, “[t]he Constitution, federal statutes, and treaties are the law, and the systematic development of the law is accomplished democratically. Our judicial task is modest: We interpret and apply written law to the facts of particular cases.”

Informed by this rationale, Justice Thomas concluded, stare decisis is reasonably reduced to “mere judgment,” which the Court can achieve “through adherence to the correct, original meaning of the laws we are charged with applying.” This view is premised upon an originalist truth: “words, including written laws, are capable of objective, ascertainable meaning.”

Accordingly, the justice announced a common-sense approach to questions of precedent and the weight that should be accorded prior decisions: "When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it. This view of stare decisis follows directly from the Constitution’s supremacy over other sources of law – including our own precedents."

With this concurring opinion, Justice Thomas arguably confirmed what the late Justice Antonin Scalia said of his fellow originalist: “He does not believe in stare decisis, period.”

With this penetrating meditation on the importance of constitutional structure and the limited authority that Article III grants the Court, Justice Thomas performed a great public service. He educated the American people on first principles and put them on notice that a constitutionalist Supreme Court would limit the Court to its proper role of interpreting the law consistent with the original meaning of the text.

Those predisposed to judicial activism are right to be concerned about what would happen if there were more conservatives like Justice Thomas on the Court. A number of their most revered – and politically divisive – Supreme Court decisions, which have no basis in the Constitution’s text, history, or structure, would not survive an honest constitutional reckoning.

Craig Trainor is a criminal defense and civil rights attorney in New York City. He previously served as a prosecutor and as a law clerk to a federal judge. His writing has appeared in National Review, the Weekly Standard, the Washington Examiner, City Journal, the Federalist, and the American Spectator. Twitter: @TrainorLaw.

Craig is a contributor to our blog at the Committee for Justice.

Views expressed here are not that of his employer.


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