Terance Martez Gamble was convicted of second-degree robbery, a felony, in 2008. As a result, he was barred under both state and federal law from possessing a firearm. Nevertheless, he was caught with a gun during a traffic stop in 2015. He was successfully prosecuted for that offense—first by Alabama and then by the federal government. The state conviction earned him just a year in prison, which he completed in May 2017, while the federal conviction resulted in a sentence almost four times as long. As a result, Gamble isn’t due to be released from prison until February 2020.
Gamble’s contesting that outcome: He argued from the outset that the federal prosecution violated the Constitution’s double jeopardy clause, which resides in the Fifth Amendment. “No person shall … be subject for the same offense to be twice put in jeopardy of life or limb“ means that the state and federal government shouldn’t be able to prosecute him for the exact same offense, Gamble argues. On its face, it seems clear enough. But double jeopardy precedent is more complicated than that.
For more than a century, since the 1850s, the Supreme Court has maintained that “separate sovereigns” are each entitled to exercise their own jurisdiction. That means a prosecution by one sovereign—the federal government, the military, states, and tribes—doesn’t bar subsequent prosecution by another sovereign. Separate sovereign doctrine was thoroughly reaffirmed in a pair of 1959 cases, one in which a state conviction preceded a federal conviction for the same conduct and a second in which the federal conviction preceded the state conviction.
The bar for overturning Supreme Court precedent is high. It would be, to put it lightly, unusual for the justices to throw out 170 years of precedent, especially precedent that so fundamentally affects how the criminal justice system operates, just as the court observed in 1959. It’d also be a massive abrogation of states’ rights and, specifically, police powers—on some views—to make it the case that federal prosecution could pre-empt state prosecution. At a minimum, it would radically change the balance of power between state and federal government in criminal justice.
Unsurprisingly, a group of 36 states led by Texas is objecting to any change to separate sovereign doctrine. The states argue that “[d]enying a State the ability to [prosecute an individual under its laws] would transform the nature of sovereignty.” They point to precedent that just two terms ago the Supreme Court referred to the principle of separate sovereigns as “fundamental” to “constitutional order” and “the very bedrock of our Union.”
That said, separate sovereign doctrine is an excellent example of precedent that bears revisiting given subsequent developments.
One of the driving notions behind separate sovereign doctrine was that different sovereigns have different interests. That premise made sense at the time that this doctrine was developed: There was some thought that federal criminal law would be relatively narrow, distinct from state law and that the military would be prosecuting military-specific crimes. Now, though, there’s substantial overlap between federal, state, and military law as set out by the Uniform Code of Military Justice.
An unlikely duo on the court’s been gunning to take on double jeopardy precedent: In 2016, Justices Clarence Thomas and Ruth Bader Ginsburg wrote a concurring opinion calling for cases that would give the court the opportunity to revisit separate sovereigns doctrine. They emphasized the constitutional guarantee against multiple prosecutions. They alluded, too, to the fact that most other countries accept conviction in one jurisdiction as precluding re-prosecution.
The potential for reversal is real. Exhibit A: The court expanded the time for oral arguments, a sign of interest. That doesn’t mean it’s likely. Extra time notwithstanding, oral argument did not go well for Gamble, though Ginsburg remained an ally. She pointed out that “with the proliferation of federal crimes for the government to seek a successive prosecution if it’s unhappy with even the most routine state prosecution is a problem.”
Other justices focused on stare decisis, the principle that the court should follow precedent except in extreme circumstances. Justice Elena Kagan characterized the principle as “a doctrine of humility.” The precedent’s 170 years old, and it’s been signed off on by 30 justices, she pointed out. Justice Brett Kavanaugh echoed her “doctrine of humility” language and proposed that Gamble must not just show that the separate sovereign doctrine is wrong, but “show that it’s grievously wrong, egregiously wrong, something meaning a very high bar because stare decisis is itself a constitutional principle.”
It’s a sticky wicket for conservatives. As a general matter, they’re beyond fond of citing stare decisis. Moreover, this case puts conservative ideology in tension with itself—the far-right loves to talk about both states’ and individual rights—as well as in conflict with political expediency, given the Trump administration’s interest in being able to grant an absolute pardon.
The deciding factors will be political, in a literal sense. Few justices on either side seemed to find the argument to depart from stare decisis in Gamble particularly compelling. That was Justice Neil Gorsuch’s refrain, incidentally—why correct precedent vis-á-vis this particular issue, given all the errors that the Supreme Court’s made?
Two critical conservative votes have particularly strong political reasons to stick with stare decisis. Chief Justice John Roberts—who may have a comrade in Justice Brett Kavanaugh—wants to avoid major upheavals. Roberts saved the ACA. Together, the pair recently opted not to join the court’s other conservatives in voting to hear a set of highly politicized Planned Parenthood cases. A decision overturning long-established precedent and radically reshaping the criminal justice landscape would be disastrous for the justice system, both practically and politically. Especially given that any such decision would come down just in time to give President Donald Trump the power to confer absolute pardons to affiliates like former campaign chair and current convict Paul Manafort. Striking separate sovereign doctrine would mean that Manafort’s prosecution under federal law could obviate state proceedings, making a presidential pardon a cure-all.
What’s behind Roberts’s and Kavanaugh’s split with the other conservatives?
Roberts is more likely to vote on principle than his more political colleagues and, not unrelated but more to the point, against anything so radical, or political, that it could jeopardize the legacy of the Roberts Court. Kavanaugh, meanwhile, may just be self-interested enough to choose to align himself with Roberts, whose vote could decide the case anyway, rather than the far-right contingent. There’s just one data point so far, but it’s easy to envision Kavanaugh coveting the role of swing vote that his mentor, former Justice Anthony Kennedy, so recently occupied. That would also be the Supreme Court niche most consistent with the legal persona Kavanaugh cultivated while on the D.C. circuit.
Less credible is the theory that Trump’s rush to get Kavanaugh suggests that Kavanaugh would vote his way—that is, against separate sovereign doctrine—in Gamble.
The Washington Post‘s Robert Barnes posits that it’s unlikely Gamble and the Kavanaugh urgency were related because 1.) the Supreme Court agreed to hear Gamble before Kavanaugh’s nomination and 2.) we have no clue how Kavanaugh would vote. Not so fast. It’s unlikely that Gamble was a major driving force behind the Kavanaugh timeline given the other more obvious causes to rush, but it’s not something to rule out automatically, given Trump’s fascination with pardons.
That Gamble was already on the docket at the time of Kavanaugh’s nomination just means that the court was definitely going to hear it; the administration could absolutely have been intent on getting Kavanaugh seated in time to vote on it. And here’s the thing: While the public and reporters may lack information about how Kavanaugh sees the issue, that doesn’t mean the White House is in the dark. Trump was very clear about his intention to use litmus test criteria for SCOTUS nominees.
Given Trump’s preoccupation with pardons, it’s not so far-fetched that Gamble would be, of course, of great interest to the administration. And this isn’t just about Manafort or any one crony—Gamble represents a chance to expand the power of the executive, to formalize Trump’s rejection of the rule of law. Whether Trump vetted Kavanaugh’s stance on double jeopardy or not, he sure cares about the outcome of this case.
This is a Creative Commons article. The original version of this article appeared here.