I don’t recall Gamble v. United States being discussed at Ordinary Times yet. But it touches on something about which I have long been curious and yet am not sure where I stand. Here’s Ken White’s summary of the case, from a post that actually is about something slightly different:
The issue at hand is the Double Jeopardy Clause of the Fifth Amendment, which says the government can’t “for the same offence . . . .be twice put in jeopardy of life or limb.” Most commonly double jeopardy means that the government can’t charge you again with the same thing after they lose at trial. There’s a notorious exception to it called the “Separate Sovereigns” or “Dual Sovereignty” Doctrine. Under this doctrine, different “sovereigns” can try you for the same crime because they have separate interests in punishing the crime. This most commonly allows the federal government and a state to prosecute you for the same crime, on the theory that they have distinct interests and reasons to do so. This famously happened when the federal government prosecuted the police officers who beat Rodney King even after they were acquitted in state court.
The Dual Sovereignty Doctrine has always been controversial and somewhat unpopular. This term, the Supreme Court agreed to hear a case in which it could overturn the Dual Sovereignty Doctrine. That case is Gamble v. United States — you can read all about it here, on the indispensable SCOTUSblog.
White’s explanation, further on, cites an amicus brief that claims dual prosecutions could still be done. One takeaway is that we could still prosecute state-level actors for civil rights violations. But I don’t understand all the legalities. I’ve read a couple of briefs already, and I plan on reading more as this case makes its way to being heard.
Worth noting: Gamble achieved some prominence on the Court’s docket because of a rumor circulated in the opposition to the confirmation of Justice Kavanaugh that Kavanaugh had indicated support for using the case to advance abolition of the Dual Sovereignty doctrine. This was supposedly to pre-empt the New York Attorney General’s investigation of various legally questionable activities within the constellation of the President’s past dealings, such as misuse of the Trump Foundation or suspected money laundering.
IMO the idea that a Supreme Court Justice would be appointed to vote yes or no on a particular question that is not abortion is attributing fourth-dimensional chess stratagems to ideologues who are actually simply playing checkers: their goal is to get as many conservatives on the Federal bench as possible. Those conservatives needn’t agree on all issues right down the line but left to their own devices they will line up and vote for the desired policy result on almost all issues, almost all of the time.
The only real litmus test out there that I see is abortion, and the only real question there is whether this or that jurist will stick with the existing agenda of whittling Federal guarantees of abortion rights down to meaninglessness or would more aggressively overturn Roe and Casey altogether.
Gamble is actually a very interesting procedural and doctrinal case, but as with so many cases of that nature, the smart money will predict either no doctrinal change, or an incremental nudge in existing doctrine. Putting your marker on “sweeping overhaul” or “overturn” is a bit like throwing your money on the table and shouting “Yo ‘Leven!” in that you might win and get a big return of prediction props, but most of the time you’re going to lose.Report
IMO the idea that a Supreme Court Justice would be appointed to vote yes or no on a particular question that is not abortion
You misspelled “vote suppression”. Shelby County was only the first step.Report
There are days when I simply wonder if some of the decisions that are returning power to the states are simply about (a) holding enough Senate seats to keep the Democrats from getting to 60 again, and (b) none of us Justices, or our kids, or our grandkids are going to live in those states. Test question, perhaps: When the Trump EPA’s proposed rule stripping California of its authority to issue tougher air pollution rules than the feds do, will the Court find for California (and the several states where the Justices live and work that have followed California)?Report
Yes and no. I think there is a reasonable plausibility that Trump and company found Kavannaugh to be more deferential to executive powers and authority than other candidates for the post.Report
McConnell didn’t want Kavannaugh to be nominated at all because of his paper trail. Trump saw Kavannaugh as his man. It could be because Trump approaches the Presidency as a monarchal position. His understanding could simply be that President gets to nominate to the Supreme Court whoever he likes, which was historically true. Or it could be that Kavannaugh as opinions about executive power that Trump likes.Report
For what it’s worth, the bulk of Ken White’s post is about exactly the “fourth-dimensional” strategem you critique in your comment. His take is very similar to yours.Report
You’re probably right. I can see the court saying that in the specific case can be distinguished somehow.Report
Bless Ken White & keep him rational!Report