Gamble v. United States

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(Slip Opinion) OCTOBER TERM, 2018 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
GAMBLE v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT
No. 17–646. Argued December 6, 2018—Decided June 17, 2019
Petitioner Gamble pleaded guilty to a charge of violating Alabama’s
felon-in-possession-of-a-firearm statute. Federal prosecutors then
indicted him for the same instance of possession under federal law.
Gamble moved to dismiss, arguing that the federal indictment was
for “the same offence” as the one at issue in his state conviction, thus
exposing him to double jeopardy under the Fifth Amendment. The
District Court denied this motion, invoking the dual-sovereignty doc-
trine, according to which two offenses “are not the ‘same offence’ ” for
double jeopardy purposes if “prosecuted by different sovereigns,”
Heath v. Alabama, 474 U.S. 82, 92. Gamble pleaded guilty to the
federal offense but appealed on double jeopardy grounds. The Elev-
enth Circuit affirmed.
Held: This Court declines to overturn the longstanding dual-
sovereignty doctrine. Pp. 3–31.
(a) The dual-sovereignty doctrine is not an exception to the double
jeopardy right but follows from the Fifth Amendment’s text. The
Double Jeopardy Clause protects individuals from being “twice put in
jeopardy” “for the same offence.” As originally understood, an “of-
fence” is defined by a law, and each law is defined by a sovereign.
Thus, where there are two sovereigns, there are two laws and two “of-
fences.” Gamble attempts to show from the Clause’s drafting history
that Congress must have intended to bar successive prosecutions re-
gardless of the sovereign bringing the charge. But even if conjectures
about subjective goals were allowed to inform this Court’s reading of
the text, the Government’s contrary arguments on that score would
prevail. Pp. 3–5.
(b) This Court’s cases reflect the sovereign-specific reading of the
phrase “same offence.” Three antebellum cases—Fox v. Ohio, 5 How.
2 GAMBLE v. UNITED STATES
Syllabus
410; United States v. Marigold, 9 How. 560; and Moore v. Illinois, 14
How. 13—laid the foundation that a crime against two sovereigns
constitutes two offenses because each sovereign has an interest to
vindicate. Seventy years later, that foundation was cemented in
United States v. Lanza, 260 U.S. 377, which upheld a federal prose-
cution that followed one by a State. This Court applied that prece-
dent for decades until 1959, when it refused two requests to reverse
course, see Bartkus v. Illinois, 359 U.S. 121; Abbate v. United States,
359 U.S. 187, and it has reinforced that precedent over the following
six decades, see, e.g., Puerto Rico v. Sanchez Valle, 579 U.S. ___.
Pp. 5–10.
(c) Gamble claims that this Court’s precedent contradicts the com-
mon-law rights that the Double Jeopardy Clause was originally un-
derstood to engraft onto the Constitution, pointing to English and
American cases and treatises. A departure from precedent, however,
“demands special justification,” Arizona v. Rumsey, 467 U.S. 203,
212, and Gamble’s historical evidence is too feeble to break the chain
of precedent linking dozens of cases over 170 years. This Court has
previously concluded that the probative value of early English deci-
sions on which Gamble relies was “dubious” due to “confused and in-
adequate reporting.” Bartkus, 359 U. S., at 128, n. 9. On closer in-
spection, that assessment has proven accurate; the passing years
have not made those early cases any clearer or more valuable. Nor
do the treatises cited by Gamble come close to settling the historical
question with enough force to meet his particular burden. His posi-
tion is also not supported by state court cases, which are equivocal at
best. Less useful still are the two federal cases cited by Gamble—
Houston v. Moore, 5 Wheat. 1, which squares with the dual-
sovereignty doctrine, and United States v. Furlong, 5 Wheat. 184,
which actually supports it. Pp. 11–28.
(d) Gamble’s attempts to blunt the force of stare decisis here do not
succeed. He contends that the recognition of the Double Jeopardy
Clause’s incorporation against the States washed away any theoreti-
cal foundation for the dual-sovereignty rule. But this rule rests on
the fact that only same-sovereign prosecutions can involve the “same
offence,” and that is just as true after incorporation as before. Gam-
ble also argues that the proliferation of federal criminal laws has
raised the risk of successive prosecutions under state and federal law
for the same criminal conduct, thus compounding the harm inflicted
by precedent. But this objection obviously assumes that precedent
was erroneous from the start, so it is only as strong as the historical
arguments found wanting. In any case, eliminating the dual-
sovereignty rule would do little to trim the reach of federal criminal
law or prevent many successive state and federal prosecutions for the
Cite as: 587 U. S. ____ (2019) 3
Syllabus
same criminal conduct, see Blockburger v. United States, 284 U.S.
299. Pp. 28–31.
694 Fed. Appx. 750, affirmed.
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and THOMAS, BREYER, SOTOMAYOR, KAGAN, and KAVANAUGH, JJ., joined.
THOMAS, J., filed a concurring opinion. GINSBURG, J., and GORSUCH, J.,
filed dissenting opinions.
Cite as: 587 U. S. ____ (2019) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 17–646
_________________
TERANCE MARTEZ GAMBLE, PETITIONER v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
[June 17, 2019]
JUSTICE ALITO delivered the opinion of the Court.
We consider in this case whether to overrule a
longstanding interpretation of the Double Jeopardy Clause
of the Fifth Amendment. That Clause provides that no
person may be “twice put in jeopardy” “for the same of-
fence.” Our double jeopardy case law is complex, but at its
core, the Clause means that those acquitted or convicted of
a particular “offence” cannot be tried a second time for the
same “offence.” But what does the Clause mean by an
“offence”?
We have long held that a crime under one sovereign’s
laws is not “the same offence” as a crime under the laws of
another sovereign. Under this “dual-sovereignty” doc-
trine, a State may prosecute a defendant under state law
even if the Federal Government has prosecuted him for
the same conduct under a federal statute.
Or the reverse may happen, as it did here. Terance
Gamble, convicted by Alabama for possessing a firearm as
a felon, now faces prosecution by the United States under
its own felon-in-possession law. Attacking this second
prosecution on double jeopardy grounds, Gamble asks us
2 GAMBLE v. UNITED STATES
Opinion of the Court
to overrule the dual-sovereignty doctrine. He contends
that it departs from the founding-era understanding of the
right enshrined by the Double Jeopardy Clause. But the
historical evidence assembled by Gamble is feeble; point-
ing the other way are the Clause’s text, other historical
evidence, and 170 years of precedent. Today we affirm
that precedent, and with it the decision below.
I
In November 2015, a local police officer in Mobile, Ala-
bama, pulled Gamble over for a damaged headlight.
Smelling marijuana, the officer searched Gamble’s car,
where he found a loaded 9-mm handgun. Since Gamble
had been convicted of second-degree robbery, his posses-
sion of the handgun violated an Alabama law providing
that no one convicted of “a crime of violence” “shall own a
firearm or have one in his or her possession.” Ala. Code
§13A–11–72(a) (2015); see §13A–11–70(2) (defining “crime
of violence” to include robbery). After Gamble pleaded
guilty to this state offense, federal prosecutors indicted
him for the same instance of possession under a federal
law—one forbidding those convicted of “a crime punishable
by imprisonment for a term exceeding one year . . . to ship
or transport in interstate or foreign commerce, or possess
in or affecting commerce, any firearm or ammunition.” 18
U.S. C. §922(g)(1).
Gamble moved to dismiss on one ground: The federal
indictment was for “the same offence” as the one at issue
in his state conviction and thus exposed him to double
jeopardy. But because this Court has long held that two
offenses “are not the ‘same offence’ ” for double jeopardy
purposes if “prosecuted by different sovereigns,” Heath v.
Alabama, 474 U.S. 82, 92 (1985), the District Court de-
nied Gamble’s motion to dismiss. Gamble then pleaded
guilty to the federal offense while preserving his right to
challenge the denial of his motion to dismiss on double
Cite as: 587 U. S. ____ (2019) 3
Opinion of the Court
jeopardy grounds. But on appeal the Eleventh Circuit
affirmed, citing the dual-sovereignty doctrine. 694 Fed.
Appx. 750 (2017). We granted certiorari to determine
whether to overturn that doctrine.1 585 U.S. ___ (2018).
II
Gamble contends that the Double Jeopardy Clause must
forbid successive prosecutions by different sovereigns
because that is what the founding-era common law did.
But before turning to that historical claim, see Part III
infra, we review the Clause’s text and some of the cases
Gamble asks us to overturn.
A
We start with the text of the Fifth Amendment. Al-
though the dual-sovereignty rule is often dubbed an “excep-
tion” to the double jeopardy right, it is not an exception at
all. On the contrary, it follows from the text that defines
that right in the first place. “[T]he language of the Clause
. . . protects individuals from being twice put in jeopardy
‘for the same offence,’ not for the same conduct or actions,”
Grady v. Corbin, 495 U.S. 508, 529 (1990), as Justice
Scalia wrote in a soon-vindicated dissent, see United
States v. Dixon, 509 U.S. 688 (1993) (overruling Grady).
And the term “ ‘[o]ffence’ was commonly understood in
1791 to mean ‘transgression,’ that is, ‘the Violation or
Breaking of a Law.’ ” Grady, 495 U. S., at 529 (Scalia, J.,
dissenting) (quoting Dictionarium Britannicum (Bailey ed.
1730)). See also 2 R. Burn & J. Burn, A New Law Diction-
ary 167 (1792) (“OFFENCE, is an act committed against
law, or omitted where the law requires it”). As originally
——————
1 In addressing that question, we follow the parties’ lead and assume,
without deciding, that the state and federal offenses at issue here
satisfy the other criteria for being the “same offence” under our double
jeopardy precedent. See Blockburger v. United States, 284 U.S. 299,
304 (1932).
4 GAMBLE v. UNITED STATES
Opinion of the Court
understood, then, an “offence” is defined by a law, and
each law is defined by a sovereign. So where there are two
sovereigns, there are two laws, and two “offences.” See
Grady, 495 U. S., at 529 (Scalia, J., dissenting) (“If the
same conduct violates two (or more) laws, then each of-
fense may be separately prosecuted”); Moore v. Illinois, 14
How. 13, 17 (1852) (“The constitutional provision is not,
that no person shall be subject, for the same act, to be
twice put in jeopardy of life or limb; but for the same
offence, the same violation of law, no person’s life or limb
shall be twice put in jeopardy” (emphasis added)).
Faced with this reading, Gamble falls back on an epi-
sode from the Double Jeopardy Clause’s drafting history.2
The first Congress, working on an earlier draft that would
have banned “ ‘more than one trial or one punishment for
the same offence,’ ” voted down a proposal to add “ ‘by any
law of the United States.’ ” 1 Annals of Cong. 753 (1789).
In rejecting this addition, Gamble surmises, Congress
must have intended to bar successive prosecutions regard-
less of the sovereign bringing the charge.
Even if that inference were justified—something that
the Government disputes—it would count for little. The
private intent behind a drafter’s rejection of one version of
a text is shoddy evidence of the public meaning of an
altogether different text. Cf. United States v. Craft, 535
——————
2 Gamble also cites founding-era uses of the word “offence” that are
not tied to violations of a sovereign’s laws, but the examples are not
very telling. Some, for instance, play on the unremarkable fact that at
the founding, “offence” could take on a different sense in nonlegal
settings, much as “offense” does today. In this vein, Gamble cites a
19th-century dictionary defining “offense” broadly as “any transgres-
sion of law, divine or human; a crime; sin; act of wickedness or omission
of duty.” 2 N. Webster, An American Dictionary of the English Lan-
guage (1828). But the question is what “offence” meant in legal con-
texts. See Moore v. Illinois, 14 How. 13, 19 (1852) (“An offence, in its
legal signification, means the transgression of a law. . .” (emphasis
added)).
Cite as: 587 U. S. ____ (2019) 5
Opinion of the Court
U. S. 274, 287 (2002) (“[F]ailed legislative proposals are a
particularly dangerous ground on which to rest an inter-
pretation of a prior statute” (internal quotation marks
omitted)).
Besides, if we allowed conjectures about purpose to
inform our reading of the text, the Government’s conjec-
ture would prevail. The Government notes that the Decla-
ration of Independence denounced King George III for
“protecting [British troops] by a mock Trial, from punish-
ment for any Murders which they should commit on the
Inhabitants of these States.” ¶ 17. The Declaration was
alluding to “the so-called Murderers’ Act, passed by Par-
liament after the Boston Massacre,” Amar, Sixth Amend-
ment First Principles, 84 Geo. L. J. 641, 687, n. 181 (1996),
a law that allowed British officials indicted for murder in
America to be “ ‘tried in England, beyond the control of
local juries.’ ” Ibid. (quoting J. Blum et al., The National
Experience 95 (3d ed. 1973)). “During the late colonial
period, Americans strongly objected to . . . [t]his circum-
vention of the judgment of the victimized community.”
Amar, 84 Geo. L. Rev., at 687, n. 181. Yet on Gamble’s
reading, the same Founders who quite literally revolted
against the use of acquittals abroad to bar criminal prose-
cutions here would soon give us an Amendment allow-
ing foreign acquittals to spare domestic criminals. We
doubt it.
We see no reason to abandon the sovereign-specific
reading of the phrase “same offence,” from which the dual-
sovereignty rule immediately follows.
B
Our cases reflect the same reading. A close look at them
reveals how fidelity to the Double Jeopardy Clause’s text
does more than honor the formal difference between two
distinct criminal codes. It honors the substantive differ-
ences between the interests that two sovereigns can have
6 GAMBLE v. UNITED STATES
Opinion of the Court
in punishing the same act.
The question of successive federal and state prosecu-
tions arose in three antebellum cases implying and then
spelling out the dual-sovereignty doctrine. The first, Fox
v. Ohio, 5 How. 410 (1847), involved an Ohio prosecution
for the passing of counterfeit coins. The defendant argued
that since Congress can punish counterfeiting, the States
must be barred from doing so, or else a person could face
two trials for the same offense, contrary to the Fifth
Amendment. We rejected the defendant’s premise that
under the Double Jeopardy Clause “offences falling within
the competency of different authorities to restrain or
punish them would not properly be subjected to the conse-
quences which those authorities might ordain and affix to
their perpetration.” Id., at 435. Indeed, we observed, the
nature of the crime or its effects on “public safety” might
well “deman[d]” separate prosecutions. Ibid. Generalizing
from this point, we declared in a second case that “the
same act might, as to its character and tendencies, and the
consequences it involved, constitute an offence against
both the State and Federal governments, and might draw
to its commission the penalties denounced by either, as
appropriate to its character in reference to each.” United
States v. Marigold, 9 How. 560, 569 (1850).
A third antebellum case, Moore v. Illinois, 14 How. 13,
expanded on this concern for the different interests of
separate sovereigns, after tracing it to the text in the
manner set forth above. Recalling that the Fifth Amend-
ment prohibits double jeopardy not “for the same ac[t]” but
“for the same offence,” and that “[a]n offence, in its legal
signification, means the transgression of a law,” id., at 19,
we drew the now-familiar inference: A single act “may be
an offence or transgression of the laws of ” two sovereigns,
and hence punishable by both, id., at 20. Then we gave
color to this abstract principle—and to the diverse inter-
ests it might vindicate—with an example. An assault on a
Cite as: 587 U. S. ____ (2019) 7
Opinion of the Court
United States marshal, we said, would offend against the
Nation and a State: the first by “hindering” the “execution
of legal process,” and the second by “breach[ing]” the
“peace of the State.” Ibid. That duality of harm explains
how “one act” could constitute “two offences, for each of
which [the offender] is justly punishable.” Ibid.
This principle comes into still sharper relief when we
consider a prosecution in this country for crimes commit-
ted abroad. If, as Gamble suggests, only one sovereign
may prosecute for a single act, no American court—state
or federal—could prosecute conduct already tried in a
foreign court. Imagine, for example, that a U. S. national
has been murdered in another country. That country
could rightfully seek to punish the killer for committing an
act of violence within its territory. The foreign country’s
interest lies in protecting the peace in that territory rather
than protecting the American specifically. But the United
States looks at the same conduct and sees an act of vio-
lence against one of its nationals, a person under the
particular protection of its laws. The murder of a U. S.
national is an offense to the United States as much as it is
to the country where the murder occurred and to which
the victim is a stranger. That is why the killing of an
American abroad is a federal offense that can be prose-
cuted in our courts, see 18 U.S. C. §2332(a)(1), and
why customary international law allows this exercise of
jurisdiction.
There are other reasons not to offload all prosecutions
for crimes involving Americans abroad. We may lack
confidence in the competence or honesty of the other coun-
try’s legal system. Less cynically, we may think that
special protection for U. S. nationals serves key national
interests related to security, trade, commerce, or scholar-
ship. Such interests might also give us a stake in punish-
ing crimes committed by U. S. nationals abroad—
especially crimes that might do harm to our national
8 GAMBLE v. UNITED STATES
Opinion of the Court
security or foreign relations. See, e.g., §2332a(b) (bomb-
ings). These examples reinforce the foundation laid in our
antebellum cases: that a crime against two sovereigns
constitutes two offenses because each sovereign has an
interest to vindicate.
We cemented that foundation 70 years after the last of
those antebellum cases, in a decision upholding a federal
prosecution that followed one by a State. See United
States v. Lanza, 260 U.S. 377, 382 (1922) (“[A]n act de-
nounced as a crime by both national and state sovereign-
ties is an offense against the peace and dignity of both and
may be punished by each”). And for decades more, we
applied our precedent without qualm or quibble. See, e.g.,
Screws v. United States, 325 U.S. 91 (1945); Jerome v.
United States, 318 U.S. 101 (1943); Puerto Rico v. Shell
Co. (P. R.), Ltd., 302 U.S. 253 (1937); Westfall v. United
States, 274 U.S. 256 (1927); Hebert v. Louisiana, 272 U.S.
312 (1926). When petitioners in 1959 asked us twice to
reverse course, we twice refused, finding “[n]o considera-
tion or persuasive reason not presented to the Court in the
prior cases” for disturbing our “firmly established” doc-
trine. Abbate v. United States, 359 U.S. 187, 195; see also
Bartkus v. Illinois, 359 U.S. 121. And then we went on
enforcing it, adding another six decades of cases to the
doctrine’s history. See, e.g., Puerto Rico v. Sánchez Valle,
579 U.S. ___ (2016); Heath v. Alabama, 474 U.S. 82(1985); United States v. Wheeler, 435 U.S. 313 (1978);
Rinaldi v. United States, 434 U.S. 22 (1977) (per curiam).
C
We briefly address two objections to this analysis.
First, the dissents contend that our dual-sovereignty
rule errs in treating the Federal and State Governments as
two separate sovereigns when in fact sovereignty belongs
to the people. See post, at 3 (opinion of GINSBURG, J.);
post, at 7 (opinion of GORSUCH, J.). This argument is
Cite as: 587 U. S. ____ (2019) 9
Opinion of the Court
based on a non sequitur. Yes, our Constitution rests on
the principle that the people are sovereign, but that does
not mean that they have conferred all the attributes of
sovereignty on a single government. Instead, the people,
by adopting the Constitution, “‘split the atom of sovereignty.’”
Alden v. Maine, 527 U.S. 706, 751 (1999) (alteration
omitted) (internal quotation marks and citation omitted).
As we explained last Term:
“When the original States declared their independ-
ence, they claimed the powers inherent in sovereignty
. . . . The Constitution limited but did not abolish the
sovereign powers of the States, which retained ‘a re-
siduary and inviolable sovereignty.’ The Federalist
No. 39, p. 245 (C. Rossiter ed. 1961). Thus, 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.’ Gregory v. Ash-
croft, 501 U.S. 452, 457 (1991).” Murphy v. National
Collegiate Athletic Assn., 584 U.S. ___, ___ (2018)
(slip op., at 14).
It is true that the Republic is “ ‘ONE WHOLE,’ ” post, at 3
(opinion of GINSBURG, J.) (quoting The Federalist No. 82,
p. 493 (C. Rossiter ed. 1961) (A. Hamilton)); accord, post,
at 7 (opinion of GORSUCH, J.). But there is a difference
between the whole and a single part, and that difference
underlies decisions as foundational to our legal system as
McCulloch v. Maryland, 4 Wheat. 316 (1819). There, in
terms so directly relevant as to seem presciently tailored
to answer this very objection, Chief Justice Marshall
distinguished precisely between “the people of a State”
and “[t]he people of all the States,” id., at 428, 435; be-
tween the “sovereignty which the people of a single state
possess” and the sovereign powers “conferred by the peo-
ple of the United States on the government of the Union,”
id., at 429–430; and thus between “the action of a part”
10 GAMBLE v. UNITED STATES
Opinion of the Court
and “the action of the whole,” id., at 435–436. In short,
McCulloch’s famous holding that a State may not tax the
national bank rested on a recognition that the States and
the Nation have different “interests” and “right[s].” Id.,
431, 436. One strains to imagine a clearer statement of
the premises of our dual-sovereignty rule, or a more au-
thoritative source. The United States is a federal republic;
it is not, contrary to JUSTICE GORSUCH’s suggestion, post,
at 10–11, a unitary state like the United Kingdom.
Gamble and the dissents lodge a second objection to this
line of reasoning. They suggest that because the division
of federal and state power was meant to promote liberty, it
cannot support a rule that exposes Gamble to a second
sentence. See post, at 3–4 (opinion of GINSBURG, J.); post,
at 8–9 (opinion of GORSUCH, J.). This argument funda-
mentally misunderstands the governmental structure
established by our Constitution. Our federal system
advances individual liberty in many ways. Among other
things, it limits the powers of the Federal Government
and protects certain basic liberties from infringement.
But because the powers of the Federal Government and
the States often overlap, allowing both to regulate often
results in two layers of regulation. Taxation is an example
that comes immediately to mind. It is also not at all un-
common for the Federal Government to permit activities
that a State chooses to forbid or heavily restrict—for
example, gambling and the sale of alcohol. And a State
may choose to legalize an activity that federal law prohib-
its, such as the sale of marijuana. So while our system of
federalism is fundamental to the protection of liberty, it
does not always maximize individual liberty at the ex-
pense of other interests. And it is thus quite extraordi-
nary to say that the venerable dual-sovereignty doctrine
represents a “ ‘desecrat[ion]’ ” of federalism. Post, at 9
(opinion of GORSUCH, J.).
Cite as: 587 U. S. ____ (2019) 11
Opinion of the Court
III
Gamble claims that our precedent contradicts the common-
law rights that the Double Jeopardy Clause was
originally understood to engraft onto the Constitution—
rights stemming from the “common-law pleas of auterfoits
acquit [former acquittal] and auterfoits convict [former
conviction].” Grady, 495 U. S., at 530 (Scalia, J., dissent-
ing). These pleas were treated as “reason[s] why the
prisoner ought not to answer [an indictment] at all, nor
put himself upon his trial for the crime alleged.” 4 W.
Blackstone, Commentaries on the Laws of England 335
(1773) (Blackstone). Gamble argues that those who rati-
fied the Fifth Amendment understood these common-law
principles (which the Amendment constitutionalized) to
bar a domestic prosecution following one by a foreign
nation. For support, he appeals to early English and
American cases and treatises. We have highlighted one
hurdle to Gamble’s reading: the sovereign-specific original
meaning of “offence.” But the doctrine of stare decisis is
another obstacle.
Stare decisis “promotes the evenhanded, predictable,
and consistent development of legal principles, fosters
reliance on judicial decisions, and contributes to the actual
and perceived integrity of the judicial process.” Payne v.
Tennessee, 501 U.S. 808, 827 (1991). Of course, it is also
important to be right, especially on constitutional matters,
where Congress cannot override our errors by ordinary
legislation. But even in constitutional cases, a departure
from precedent “demands special justification.” Arizona v.
Rumsey, 467 U.S. 203, 212 (1984). This means that some-
thing more than “ambiguous historical evidence” is re-
quired before we will “flatly overrule a number of major
decisions of this Court.” Welch v. Texas Dept. of Highways
and Public Transp., 483 U.S. 468, 479 (1987). And the
strength of the case for adhering to such decisions grows
in proportion to their “antiquity.” Montejo v. Louisiana,
12 GAMBLE v. UNITED STATES
Opinion of the Court
556 U.S. 778, 792 (2009). Here, as noted, Gamble’s his-
torical arguments must overcome numerous “major deci-
sions of this Court” spanning 170 years. In light of these
factors, Gamble’s historical evidence must, at a minimum,
be better than middling.
And it is not. The English cases are a muddle. Trea-
tises offer spotty support. And early state and federal cases
are by turns equivocal and downright harmful to Gamble’s
position. All told, this evidence does not establish that
those who ratified the Fifth Amendment took it to bar
successive prosecutions under different sovereigns’ laws—
much less do so with enough force to break a chain of
precedent linking dozens of cases over 170 years.
A
Gamble’s core claim is that early English cases reflect
an established common-law rule barring domestic prosecu-
tion following a prosecution for the same act under a
different sovereign’s laws. But from the very dawn of the
common law in medieval England until the adoption of the
Fifth Amendment in 1791, there is not one reported deci-
sion barring a prosecution based on a prior trial under
foreign law. We repeat: Gamble has not cited and we have
not found a single pre-Fifth Amendment case in which a
foreign acquittal or conviction barred a second trial in a
British or American court. Given this void, Gamble faces
a considerable challenge in convincing us that the Fifth
Amendment was originally understood to establish such a
bar.
Attempting to show that such a bar was available,
Gamble points to five early English decisions for which we
have case reports. We will examine these in some detail,
but we note at the outset that they play only a secondary
role for Gamble.
The foundation of his argument is a decision for which
we have no case report: the prosecution in England in
Cite as: 587 U. S. ____ (2019) 13
Opinion of the Court
1677 of a man named Hutchinson. (We have a report of a
decision denying Hutchinson bail but no report of his
trial.) As told by Gamble, Hutchinson, having been tried
and acquitted in a foreign court for a murder committed
abroad, was accused of the same homicide in an English
tribunal, but the English court held that the foreign prose-
cution barred retrial.
Everything for Gamble stems from this one unreported
decision. To the extent that the cases he cites provide any
support for his argument—and for the most part, they do
not—those cases purport to take their cue from the
Hutchinson episode; the same is true of the treatises on
which Gamble relies.
So what evidence do we have about what actually hap-
pened to Hutchinson? The most direct evidence is a report
of his application for bail before the Court of King’s Bench.
The report spans all of one sentence:
“On Habeas Corpus it appeared the Defendant was
committed to Newgate on suspicion of Murder in Por-
tugal, which by Mr. Attorny being a Fact out of the
Kings Dominions, is not triable by Commission, upon
35 H. 8. Cap. 2. §. I. N. 2. but by a Constable and
Marshal, and the Court refused to Bail him, & c.” Rex
v. Hutchinson, 3 Keb. 785, 84 Eng. Rep. 1011 (1677).
From this report, all that we can tell about the court’s
thinking is that it found no convincing reason to grant
bail, as was typical in murder cases.3 The rest of the
report concerns claims by an attorney. We are told that he
contested the jurisdiction of the commission before which
Hutchinson was to be tried, apparently a special commis-
sion that would have issued pursuant to a statute enacted
under Henry VIII.4 The commission lacked jurisdiction,
——————
3 See J. Beattie, Crime and the Courts in England: 1660–1800, pp.
281–282 (1986).
4 Although this Act reached conduct committed “out of the King Maj-
14 GAMBLE v. UNITED STATES
Opinion of the Court
the attorney seemed to suggest, because the crime had
occurred in Portugal and thus “out of the Kings Domin-
ions.” The attorney claimed that jurisdiction lay instead
with “a Constable and Marshal”—an apparent reference to
the High Court of Chivalry, which dealt with treason and
murder committed abroad.5 But what, if anything, did the
King’s Bench make of the attorney’s jurisdictional claims?
And more to the point, what happened after bail was
denied? The bail report does not say.
If Hutchinson did ultimately appear before the Court of
Chivalry—and if that court accepted a plea of prior acquit-
tal in Portugal—this would be paltry evidence of any
common-law principle, which is what Gamble cites
Hutchinson to establish. After all, the High Court of
Chivalry was a civil-law court prohibited from proceeding
under the common law (unlike every other English court
of the time save Admiralty). 8 Ric. 2 ch. 5; see also Squibb
162; id., at xxv–xxvi (“The essential distinction between
the Court of Chivalry and other courts is . . . that it admin-
isters justice in relation to those military matters which
are not governed by the common law”). Nor would it be
any surprise that we have no report of the proceeding; in
fact, “[t]here is no report of a case in which a judge of the
Court [of Chivalry] has set out the reasons for his decision
earlier than the [20th] century.” Id., at 162.
In the end, we have only two early accounts from judges
of what finally became of Hutchinson, and both are indi-
rect and shaky. First, they appear in the reports of cases
decided in the Court of Chancery more than a half century
after Hutchinson. Second, both judges cite only one
——————
esties Realme of Englande and other his Graces [Dominions],” Acte
concerning the triall of Treasons 1543–1544, 35 Hen. 8 ch. 2 (1543–
1544), it applied only to treasons and misprisions of treason—not to
homicide, of which Hutchinson was accused.
5 See G. Squibb, The High Court of Chivalry 54, 147–148 (1959)
(Squibb); 4 Blackstone 267.
Cite as: 587 U. S. ____ (2019) 15
Opinion of the Court
source, and it is of lower authority than their own: namely,
an account of Hutchinson given by an interested party
(a defendant) in a previous, non-criminal case—an account
on which the court in that case did not rely or even com-
ment.6 Insofar as our two judges seem to add their own
details to the Hutchinson saga, we are not told where they
obtained this information or whether it reflects mere
guesses as to how gaps in the story should be filled in,
decades after the fact. Finally, the two judges’ accounts
are not entirely consistent. Still, they are the only early
judicial glosses on Hutchinson that we have, so we will
work with them.
The more extensive account appears in the case of Gage
v. Bulkeley, Ridg. T. H. 263, 27 Eng. Rep. 824 (Ch. 1744),
and what the court said there—far from supporting Gam-
ble’s argument—cuts against it. Gage involved a bill in
chancery for an account of money deposited with a banker
in Paris. The defendants pleaded, as a bar to this lawsuit,
“a sentence” “given upon” the same demand in a French
court. Ibid. In addressing this plea, Lord Chancellor
Hardwicke first determined that foreign judgments are
not binding in an English court of law. Here his reasoning
was very similar to that found in our dual-sovereignty
decisions. Because each judgment rests on the authority
of a particular sovereign, the Chancellor thought, it cannot
bind foreign courts, which operate by the power of a differ-
ent sovereign. Id., at 263–264, 27 Eng. Rep., at 824.
——————
6 See Gage v. Bulkeley, Ridg. T. H. 263, 271, 27 Eng. Rep. 824, 826–
827 (Ch. 1744) (citing Beake v. Tyrrell, 1 Show. K. B. 6); Burrows v.
Jemino, 2 Str. 733, 25 Eng. Rep. 235 (K. B. 1726) (same). As noted, the
report cited by both judges—which also appears at 89 Eng. Rep. 411 (K.
B. 1688)—mentions Hutchinson only in summarizing a defendant’s
argument. So does the only other source cited by either judge. See
Gage, Ridg. T. H., at 271, 27 Eng. Rep., at 826–827 (citing Beak v.
Thyrwhit, 3 Mod. 194, 87 Eng. Rep. 124 (K. B. 1688)). Below we discuss
in detail the case that figures in these two reports. See infra, at 19,
and n. 11.
16 GAMBLE v. UNITED STATES
Opinion of the Court
Turning next to courts of equity, the Lord Chancellor
saw no reason that the rule should be any different; there
too, he thought, a foreign judgment is not binding. Id., at
273, 27 Eng. Rep., at 827. But he did allow that in equity
a foreign judgment could serve as “evidence, which may
affect the right of [a plaintiff] when the cause comes to be
heard.” Ibid.
Elaborating on why foreign judgments did not bind
English courts, whether of law or equity, the Lord Chan-
cellor explained why Hutchinson was “no proof ” to the
contrary. In the Chancellor’s telling, Hutchinson was not
indicted by the Court of King’s Bench, which could have
tried a murder committed in England,7 because that court
had no jurisdiction over a homicide committed in Portugal.
Gage, Ridge. T. H., at 271, 27 Eng. Rep., at 826–827.
Instead, Hutchinson was (as the bail decision indicates)
before that court on a writ of habeas corpus, and his case
“was referred to the judges to know whether a commission
should issue” under a statute similar to the one mentioned
in the bail decision. Ibid., 27 Eng. Rep., at 827; see 33
Hen. 8 ch. 28 (1541–1542).8 “And,” he explained, “the
judges very rightly and mercifully thought not, because he
had undergone one trial already.” Gage, Ridg. T. H., at
271–272, 27 Eng. Rep., at 827 (emphasis added). This
suggests that Hutchinson was spared retrial as a matter
of discretion (“merc[y]”)—which must be true if the Chan-
——————
74 Blackstone 262.
8 This statute authorized commissioners to try certain defendants for
acts of treason or murder committed “in whatsoever other Shire or
place, within the King’s dominions or without.” But “[d]espite the
words ‘or without’, contemporary opinion seems not to have regarded
the extra-territorial operation of this Act as clear.” Squibb 149. In-
deed, the statute cited in the Hutchinson bail report, dated to just two
years later, cited lingering “doubtes and questions” about whether
English courts could try treason committed abroad (in the course of
clarifying that treason and misprisions of treason abroad could indeed
be tried in England). 35 Hen. 8 ch. 2, § I.
Cite as: 587 U. S. ____ (2019) 17
Opinion of the Court
cellor was right that foreign judgments were not binding.
Indeed, at least one modern scholar agrees (on other
grounds as well) that the result in Hutchinson may have
been based on “expediency rather than law.” M. Fried-
land, Double Jeopardy 362–363 (1969).
In the end, then, Gage is doubly damaging to Gamble.
First, it squarely rejects the proposition that a litigant in
an English court—even a civil litigant in equity—had a
right to the benefit of a foreign judgment, a right that the
Fifth Amendment might have codified. And second, Gage
undermines Gamble’s chief historical example,
Hutchinson, by giving a contrary reading of that case—
and doing so, no less, in one of the only two judicial ac-
counts of Hutchinson that we have from before the Fifth
Amendment.
The other account appears in Burrows v. Jemino, 2 Str.
733, 93 Eng. Rep. 815 (K. B. 1726).9 In Burrows, a party
that was sued in England on a bill of exchange sought an
injunction against this suit in the Court of Chancery,
contending that the suit was barred by the judgment of a
court in Italy. In explaining why he would grant the
injunction, Lord Chancellor King cited Hutchinson, which
he thought had involved an acquittal in Spanish court
that was “allowed to be a good bar to any proceedings
here.” 2 Str., at 733, 93 Eng. Rep., at 815. This remark,
showing that at least one English judge before the found-
ing saw Hutchinson as Gamble does, provides a modicum
of support for Gamble’s argument. But that support soft-
ens just a few lines down in the report, where the Chan-
cellor discusses the status of foreign judgments in courts
of law in particular (as distinct from courts of equity like
——————
9 This case is also reported as Burrows v. Jemineau in Sel. Ca. t. 69,
25 Eng. Rep. 228 (Ch. 1726); as Burroughs v. Jamineau in Mos. 1, 25
Eng. Rep. 235; as Burrows v. Jemineau in 2 Eq. Ca. Abr. 476, 22 Eng.
Rep. 405; and as Burrows v. Jemino in 2 Eq. Ca. Abr. 524, 22 Eng. Rep.
443.
18 GAMBLE v. UNITED STATES
Opinion of the Court
his own)—i.e., the courts that actually applied the common-
law rules later codified by the Fifth Amendment.
Here the Chancellor explained that while he personally
would have accepted an Italian judgment as barring any
suit at law, “other Judges might be of a different opinion.”
Ibid. As a whole, then, the Chancellor’s comments in
Burrows can hardly be cited to prove that the common law
had made up its mind on this matter; just the opposite.
Gamble’s other cases have even less force. The “most
instructive” case, he claims, see Brief for Petitioner 13, is
the 1775 case of King v. Roche, 1 Leach 134,10 168 Eng.
Rep. 169 (K.B.), but that is a curious choice since the
Roche court does not so much as mention Hutchinson or
even tacitly affirm its supposed holding. The defendant in
Roche entered two pleas: prior acquittal abroad and not
guilty of the charged crime. All that the Roche court held
was that, as a procedural matter, it made no sense to
charge the jury with both pleas at once, because a finding
for Roche on the first (prior acquittal) would, if successful,
bar consideration of the second (not guilty). Roche, 1
Leach, at 135, 168 Eng. Rep., at 169. But on our key
question—whether a plea based on a foreign acquittal
could be successful—the Roche court said absolutely noth-
ing; it had no occasion to do so. Before the prosecution
could reply to Roche’s plea of prior acquittal, he withdrew
it, opting for a full trial. The name Hutchinson does not
appear even in the marginalia of the 1789 edition of
Roche, which existed in 1791. See Captain Roche’s Case, 1
Leach at 138–139.
Hutchinson is mentioned in connection with Roche only
after the Fifth Amendment’s ratification, and only in a
compiler’s annotation to the 1800 edition of the Roche case
report. See 168 Eng. Rep., at 169, n. (a). That annotation
——————
10 This case is reported as Captain Roche’s Case in 1 Leach 138 (1789
ed.) and in 2 Leach 125 (1792 ed.).
Cite as: 587 U. S. ____ (2019) 19
Opinion of the Court
in turn cites one case as support for its reading of
Hutchinson: Beak v. Thyrwhit, 3 Mod. 194, 87 Eng. Rep.
124 (K. B. 1688). But Beak did not involve a foreign pros-
ecution; indeed, it did not involve a prosecution at all. It
was an admiralty case for trover and conversion of a ship,
and—more to the point—Hutchinson is discussed only in
the defendant’s argument in that case, not the court’s
response. A report relaying the actual decision in Beak
shows that the court ultimately said nothing about the
defendant’s Hutchinson argument one way or another.
See Beake v. Tyrrell, 1 Show. K. B. 6, 89 Eng. Rep. 411
(1688).11 This same defendant’s argument was the only
source of information about Hutchinson on which the
Chancellors in Gage and Burrows explicitly relied, as we
noted above. All later accounts of Hutchinson seem to
stem from this one shallow root.
The last of Gamble’s five pre-Fifth Amendment cases,
Rex v. Thomas, 1 Lev. 118, 83 Eng. Rep. 326 (K. B. 1664),
did not even involve a foreign prosecution. The defendant
was indicted for murder in England, and he pleaded a
prior acquittal by a Welsh court. But Wales was then part
of the “kingdom of England”; its laws were “the laws of
England and no other.” 1 Blackstone 94–95; see Thomas,
1 Lev., at 118, 83 Eng. Rep., at 326–327. So the prior trial
in Thomas was not under another sovereign’s laws, mak-
ing it totally irrelevant for present purposes.
Summing up the import of the preratification cases on
which Gamble’s argument rests, we have the following: (1)
not a single reported case in which a foreign acquittal or
conviction barred a later prosecution for the same act in
either Britain or America; (2) not a single reported deci-
sion in which a foreign judgment was held to be binding in
a civil case in a court of law; (3) fragmentary and not
——————
11 This decision is also reported as Beake v. Tirrell, Com. 120, 90 Eng.
Rep. 379.
20 GAMBLE v. UNITED STATES
Opinion of the Court
entirely consistent evidence about a 17th-century case in
which a defendant named Hutchinson, having been tried
and acquitted for murder someplace in the Iberian Penin-
sula, is said to have been spared a second trial for this
crime on some ground, perhaps out of “merc[y],” not as a
matter of right; (4) two cases (one criminal, one in admi-
ralty) in which a party invoked a prior foreign judgment,
but the court did not endorse or rest anything on the
party’s reliance on that judgment; and (5) two Court of
Chancery cases actually holding that foreign judgments
were not (or not generally) treated as barring trial at
common law. This is the flimsy foundation in case law for
Gamble’s argument that when the Fifth Amendment was
ratified, it was well understood that a foreign criminal
judgment would bar retrial for the same act.
Surveying the pre-Fifth Amendment cases in 1959, we
concluded that their probative value was “dubious” due to
“confused and inadequate reporting.” Bartkus, 359 U. S.,
at 128, n. 9. Our assessment was accurate then, and the
passing years have not made those early cases any clearer
or more valuable.
B
Not to worry, Gamble responds: Whatever the English
courts actually did prior to adoption of the Fifth Amend-
ment, by that time the early English cases were widely
thought to support his view. This is a curious argument
indeed. It would have us hold that the Fifth Amendment
codified a common-law right that existed in legend, not
case law. In any event, the evidence that this right was
thought to be settled is very thin.
Gamble’s argument is based on treatises, but they are
not nearly as helpful as he claims. Alone they do not come
close to settling the historical question with enough force
to meet Gamble’s particular burden under stare decisis.
Gamble begins with Blackstone, but he reads volumes
Cite as: 587 U. S. ____ (2019) 21
Opinion of the Court
into a flyspeck. In the body of his Commentaries, all that
Blackstone stated was that successive prosecutions could
be barred by prior acquittals by “any court having compe-
tent jurisdiction of the offence.” 4 Blackstone 335. This is
simply a statement of the general double-jeopardy rule,
without a word on separate sovereigns. So Gamble directs
our attention to a footnote that appears after the phrase
“any court having competent jurisdiction.” The footnote
refers to the report of Beak v. Thyrwhit, which, as noted,
merely rehearses the argument of the defendant in that
case, who in turn mentioned Hutchinson—but not in a
criminal prosecution, much less one preceded by a foreign
trial. This thread tying Blackstone to Hutchinson—a
thread woven through footnotes and reports of reports but
not a single statement by a court (or even by a party to an
actual prosecution)—is tenuous evidence that Blackstone
endorsed Gamble’s reading of Hutchinson.
When Gamble’s attorney was asked at argument which
other treatises he found most likely to have informed
those who ratified the Fifth Amendment, he offered four.
See Tr. of Oral Arg. 30–31. But two of the four treatises
did not exist when the Fifth Amendment was ratified. See
1 J. Chitty, Criminal Law 458 (1816); 1 T. Starkie, Crimi-
nal Pleading 300–301, n. h (1814). And a third discusses
not a single case involving a prior prosecution under for-
eign law. See 2 W. Hawkins, Pleas of the Crown 372
(1739).
That leaves one treatise cited by Gamble that spoke to
this issue before ratification, F. Buller, An Introduction to
the Law Relative to Trials at Nisi Prius (5th ed. 1788).
That treatise concerned the trial of civil cases, id., at 2,
and its discussion of prior judgments appeared under the
heading “Of Evidence in general,” id., at 221. After con-
sidering the evidentiary value of such documents as acts of
Parliament, deeds, and depositions, Buller addressed what
we would later call issue preclusion. Lifting language
22 GAMBLE v. UNITED STATES
Opinion of the Court
from an earlier publication, H. Bathurst, The Theory of
Evidence 39 (1761), Buller wrote that a final judgment
was “conclusive Evidence” “against all the World” of the
factual determinations underlying the judgment. Buller,
Nisi Prius, at 245. And it is on this basis that Buller
(again lifting from Bathurst) said that even someone
acquitted of a crime in Spain “might,” upon indictment in
England, “plead the Acquittal in Spain in Bar.” Ibid.
This endorsement of the preclusive effect of a foreign
judgment in civil litigation (which even today is not uni-
formly accepted in this country12) provides no direct sup-
port for Gamble since his prior judgment was one of con-
viction, not acquittal. (There is, after all, a major
difference between the preclusive effect of a prior acquittal
and that of a prior conviction: Only the first would make a
subsequent prosecution pointless, by requiring later courts
to assume a defendant’s innocence from the start.) And in
any case, the fleeting references in the Buller and Bat-
——————
12 Compare Restatement (Fourth) of Foreign Relations Law of the
United States § 481 (2018) (With a few specified exceptions, “a final,
conclusive, and enforceable judgment of a court of a foreign state
granting or denying recovery of a sum of money, or determining a legal
controversy, is entitled to recognition by courts in the United States”)
and Restatement (Second) of Conflict of Laws § 98, Comment b. (1969)
(“In most respects,” judgments rendered in a foreign nation satisfying
specified criteria “will be accorded the same degree of recognition to
which sister State judgments are entitled”), with, e.g., Derr v. Swarek,
766 F.3d 430, 437 (CA5 2014) (recognition of foreign judgments is not
required but is a matter of comity); Diorinou v. Mezitis, 237 F.3d 133,
142–143 (CA2 2001) (same); id., at 139–140 (“It is well-established that
United States courts are not obliged to recognize judgments rendered
by a foreign state, but may choose to give res judicata effect to foreign
judgments on the basis of comity” (emphasis in original; internal
quotation marks omitted)); MacArthur v. San Juan County, 497 F.3d
1057, 1067 (CA10 2007) (“Comity is not an inexorable command . . . and
a request for recognition of a foreign judgment may be rebuffed on any
number of grounds”); Guinness PLC v. Ward, 955 F.2d 875, 883 (CA4
1992) (“The effect to be given foreign judgments has therefore histori-
cally been determined by more flexible principles of comity”).
Cite as: 587 U. S. ____ (2019) 23
Opinion of the Court
hurst treatises are hardly sufficient to show that the Mem-
bers of the First Congress and the state legislators who
ratified the Fifth Amendment understood the Double
Jeopardy Clause to bar a prosecution in this country after
acquittal abroad for the same criminal conduct.
Gamble attempts to augment his support by citing
treatises published after the Fifth Amendment was adopted.13
And he notes that the Court in District of Columbia
v. Heller, 554 U.S. 570, 605–610 (2008), took treatises of a
similar vintage to shed light on the public understanding
in 1791 of the right codified by the Second Amendment.
But the Heller Court turned to these later treatises only
after surveying what it regarded as a wealth of authority
for its reading—including the text of the Second Amend-
ment and state constitutions. The 19th-century treatises
were treated as mere confirmation of what the Court
thought had already been established. Here Gamble’s
evidence as to the understanding in 1791 of the double
jeopardy right is not at all comparable.
C
When we turn from 19th-century treatises to 19th-
century state cases, Gamble’s argument appears no
stronger. The last time we looked, we found these state
cases to be “inconclusive.” Bartkus, 359 U. S., at 131.
They seemed to be evenly split and to “manifest conflict[s]
in conscience” rather than confident conclusions about the
common law. Ibid. Indeed, two of those cases manifested
nothing more than a misreading of a then-recent decision
of ours. Id., at 130. We see things no differently today.
The distinction between believing successive prosecu-
tions by separate sovereigns unjust and holding them
——————
13 See, e.g., F. Wharton, A Treatise on the Law of Homicide in the
United States 283 (1855); F. Wharton, A Treatise on the Criminal Law
of the United States 137 (1846); L. MacNally, The Rules of Evidence on
Pleas of the Crown 428 (1802).
24 GAMBLE v. UNITED STATES
Opinion of the Court
unlawful appears right on the face of the first state case
that Gamble discusses. In State v. Brown, 2 N. C. 100,
101 (1794), the court opined that it would be “against
natural justice” for a man who stole a horse in the Southwest
Territory to be punished for theft in North Carolina just
for having brought the horse to that State. To avoid this
result, the Brown court simply construed North Carolina’s
theft law not to reach the defendant’s conduct. But it did
so precisely because the defendant otherwise could face
two prosecutions for the same act of theft—despite the
common-law rule against double jeopardy for the same
“offence”—since “the offence against the laws of this State,
and the offence against the laws of [the Territory] are
distinct; and satisfaction made for the offence committed
against this State, is no satisfaction for the offence com-
mitted against the laws there.” Ibid. Far from undermin-
ing the dual-sovereignty rule, Brown expressly affirms it,
rejecting outright the idea that a judgment in one sover-
eign’s court could “be pleadable in bar to an indictment” in
another’s. Ibid.
Other state courts were divided. Massachusetts and
Michigan courts thought that at least some trials in either
federal or state court could bar prosecution in the other,
see Commonwealth v. Fuller, 49 Mass. 313, 318 (1844);
Harlan v. People, 1 Doug. 207, 212 (Mich. 1843), but those
antebellum cases are poor images of the founding-era
common law, resting as they do on what we have ex-
plained, see Bartkus, 359 U. S., at 130, was a misreading
of our then-recent decision in Houston v. Moore, 5 Wheat.
1 (1820), which we discuss below. A Vermont court did
take the same view based on its own analysis of the ques-
tion, State v. Randall, 2 Aik. 89, 100–101 (1827), but just a
few years later a Virginia court declared the opposite,
Hendrick v. Commonwealth, 32 Va. 707, 713 (1834) (pun-
ishment for forgery under both federal and Virginia law is
not double punishment for the “same offence” since “the
Cite as: 587 U. S. ____ (2019) 25
Opinion of the Court
law of Virginia punishes the forgery, not because it is an
offence against the U. States, but because it is an offence
against this commonwealth”). And South Carolina—a
perfect emblem of the time—produced cases cutting both
ways. See State v. Antonio, 2 Tread. 776, 781 (1816); State
v. Tutt, 2 Bail. 44, 47–48 (1831).
This is not the quantum of support for Gamble’s claim
about early American common law that might withstand
his burden under stare decisis. And once we look beyond
the Nation’s earliest years, the body of state-court deci-
sions appears even less helpful to Gamble’s position. We
aptly summarized those cases in Bartkus, 359 U. S., at
134–136, and need not add to that discussion here.14
D
Less useful still, for Gamble’s purposes, are the two
early Supreme Court cases on which he relies. In the first,
a member of the Pennsylvania militia was tried by a state
court-martial for the federal offense of deserting the mili-
tia. See Houston v. Moore, 5 Wheat. 1 (1820). The ac-
——————
14 As we put it in Bartkus, 359 U. S., at 134–136:
“Of the twenty-eight States which have considered the validity of
successive state and federal prosecutions as against a challenge of
violation of either a state constitutional double-jeopardy provision or a
common-law evidentiary rule of autrefois acquit and autrefois convict,
twenty-seven have refused to rule that the second prosecution was or
would be barred. These States were not bound to follow this Court and
its interpretation of the Fifth Amendment. The rules, constitutional,
statutory, or common law which bound them, drew upon the same
experience as did the Fifth Amendment, but were and are of separate
and independent authority.
“Not all of the state cases manifest careful reasoning, for in some of
them the language concerning double jeopardy is but offhand dictum.
But in an array of state cases there may be found full consideration of
the arguments supporting and denying a bar to a second prosecution.
These courts interpreted their rules as not proscribing a second prose-
cution where the first was by a different government and for violation
of a different statute.” (Footnote omitted.)
26 GAMBLE v. UNITED STATES
Opinion of the Court
cused objected that the state court-martial lacked jurisdic-
tion to try this federal offense. Since the offense could be
tried in federal court, the defendant argued, allowing the
state court-martial to try him for this crime could expose
him to successive federal and state prosecutions for the
same offense. Justice Washington answered that a ruling
in either federal or state court would bar a second trial in
the other. See id., at 31. But as we later explained,
“that language by Mr. Justice Washington reflected
his belief that the state statute imposed state sanc-
tions for violation of a federal criminal law. As he
viewed the matter, the two trials would not be of simi-
lar crimes arising out of the same conduct; they would
be of the same crime. Mr. Justice Johnson agreed
that if the state courts had become empowered to try
the defendant for the federal offense, then such a
state trial would bar a federal prosecution. Thus
Houston v. Moore can be cited only for the presence of
a bar in a case in which the second trial is for a viola-
tion of the very statute whose violation by the same
conduct has already been tried in the courts of an-
other government empowered to try that question.”
Bartkus, 359 U. S., at 130 (citations omitted).
In other words, Justice Washington taught only that the
law prohibits two sovereigns (in that case, Pennsylvania
and the United States) from both trying an offense against
one of them (the United States). That is consistent with
our doctrine allowing successive prosecutions for offenses
against separate sovereigns. In light of this reading of
Houston, the case does not undercut our dual-sovereignty
doctrine.
It may seem strange to think of state courts as prosecut-
ing crimes against the United States, but that is just what
state courts and commentators writing within a decade of
Houston thought it involved. See, e.g., Tutt, 2 Bail., at 47
Cite as: 587 U. S. ____ (2019) 27
Opinion of the Court
(“In [Houston], the act punished by the law of the State,
was certainly and exclusively an offence against the gen-
eral Government . . . [whereas h]ere, certainly there is an
offence against the State, and a very different one from
that committed against the United States” (emphasis
added)); 1 J. Kent, Commentaries on American Law 373–
374 (1826) (“[M]any . . . acts of [C]ongress . . . permit
jurisdiction, over the offences therein described, to be
exercised by state magistrates and courts,” and what
Houston bars are successive prosecutions for the same
“crime against the United States”). Even the scholar
Gamble cites for his cause finds Houston not “[o]n point”
because it “was discussing the jurisdiction of the state
court to try a crime against the nation and impose a fine
payable to the latter government.” Grant, Successive
Prosecutions by State and Nation: Common Law and
British Empire Comparisons, 4 UCLA L. Rev. 1, 7, and n.
27 (1956) (citing Warren, Federal Criminal Laws and the
State Courts, 38 Harv. L. Rev. 545 (1925)).
Perhaps feeling Houston wobble, Gamble says pre-
emptively that if it is “inconclusive,” Brief for Petitioner
26, other cases are clear. But the other federal case on
which he leans is worse for his argument. In United
States v. Furlong, 5 Wheat. 184, 197 (1820), we said that
an acquittal of piracy in the court of any “civilized State”
would bar prosecution in any other nation because piracy,
as an “offence within the criminal jurisdiction of all na-
tions,” is “punished by all.”15 Ending his quotation from
——————
15 Piracywas understood as a violation of the law of nations, which
was seen as common to all. That is why any successive prosecution for
piracy, being under the same law, would have been for the same of-
fense. See United States v. Smith, 5 Wheat. 153, 163, n. a (1820)
(quoting definitions of piracy by several ancient and more recent
authorities). See also 4 Blackstone 71 (“[T]he crime of piracy, or rob-
bery and depredation upon the high seas, is an offence against the
universal law of society; a pirate being, according to Sir Edward Coke,
28 GAMBLE v. UNITED STATES
Opinion of the Court
Furlong at this point, Gamble gives the impression that
Furlong rejects any dual-sovereignty rule. But that im-
pression is shattered by the next sentence: “Not so with
the crime of murder.” Ibid. As to that crime, the Furlong
Court was “inclined to think that an acquittal” in the
United States “would not have been a good plea in a Court
of Great Britain.” Ibid. (emphasis added). And that was
precisely because murder is “punishable under the laws of
each State” rather than falling under some “universal
jurisdiction.” Ibid. (emphasis added). When it came to
crimes that were understood to offend against more than
one sovereign, Furlong treated them as separate offenses—
just as we have a dozen times since, and just as we do
today.
Thus, of the two federal cases that Gamble cites against
the dual-sovereignty rule, Houston squares with it and
Furlong supports it. Together with the muddle in the
early state cases, this undermines Gamble’s claim that the
early American bench and bar took the Fifth Amendment
to proscribe successive prosecutions by different sover-
eigns. And without making a splash in the legal practice
of the time, a few early treatises by themselves cannot
unsettle almost two centuries of precedent.
IV
Besides appealing to the remote past, Gamble contends
that recent changes—one doctrinal, one practical—blunt
the force of stare decisis here. They do not.
——————
hostis humani generis [enemies of mankind]. As therefore he has
renounced all the benefits of society and government, and has reduced
himself afresh to the savage state of nature, by declaring war against
all mankind, all mankind must declare war against him: so that every
community has a right, by the rule of self-defence, to inflict that pun-
ishment upon him, which every individual would in a state of nature
have been otherwise entitled to do, for any invasion of his person or
personal property” (footnote omitted)).
Cite as: 587 U. S. ____ (2019) 29
Opinion of the Court
A
If historical claims form the chorus of Gamble’s argu-
ment, his refrain is “incorporation.” In Gamble’s telling,
the recognition of the Double Jeopardy Clause’s incorpora-
tion against the States, see Benton v. Maryland, 395 U.S.
784, 794 (1969), washed away any theoretical foundation
for the dual-sovereignty rule, see United States v. Gaudin,
515 U.S. 506, 521 (1995) (abrogating precedent when
“subsequent decisions of this Court” have “eroded” its
foundations). But this incorporation-changes-everything
argument trades on a false analogy.
The analogy Gamble draws is to the evolution of our
doctrine on the Fourth Amendment right against unrea-
sonable searches and seizures.16 We have long enforced
this right by barring courts from relying on evidence gath-
ered in an illegal search. Thus, in Weeks v. United States,
232 U.S. 383, 391–393 (1914), the Court held that federal
prosecutors could not rely on the fruits of an unreasonable
search undertaken by federal agents. But what if state or
local police conducted a search that would have violated
the Fourth Amendment if conducted by federal agents?
Before incorporation, the state search would not have
violated the Federal Constitution, so federal law would not
have barred admission of the resulting evidence in a state
prosecution. But by the very same token, under what was
termed “the silver-platter doctrine,” state authorities could
hand such evidence over to federal prosecutors for use in a
federal case. See id., at 398.
Once the Fourth Amendment was held to apply to the
States as well as the Federal Government, however, the
silver-platter doctrine was scuttled. See Elkins v. United
States, 364 U.S. 206 (1960); Wolf v. Colorado, 338 U.S. 25——————
16 He draws a similar analogy to the Fifth Amendment right against
self-incrimination, but our response to his Fourth Amendment analogy
would answer that argument as well.
30 GAMBLE v. UNITED STATES
Opinion of the Court
(1949). Now the fruits of unreasonable state searches are
inadmissible in federal and state courts alike.
Gamble contends that the incorporation of the Double
Jeopardy Clause should likewise end the dual-sovereignty
rule, but his analogy fails. The silver-platter doctrine was
based on the fact that the state searches to which it ap-
plied did not at that time violate federal law. Once the
Fourth Amendment was incorporated against the States,
the status of those state searches changed. Now they did
violate federal law, so the basis for the silver-platter doc-
trine was gone. See Elkins, 364 U. S., at 213 (“The foun-
dation upon which the admissibility of state-seized evi-
dence in a federal trial originally rested—that
unreasonable state searches did not violate the Federal
Constitution—thus disappeared [with incorporation]”).
By contrast, the premises of the dual-sovereignty doc-
trine have survived incorporation intact. Incorporation
meant that the States were now required to abide by this
Court’s interpretation of the Double Jeopardy Clause. But
that interpretation has long included the dual-sovereignty
doctrine, and there is no logical reason why incorporation
should change it. After all, the doctrine rests on the fact
that only same-sovereign successive prosecutions are
prosecutions for the “same offense,” see Part II, supra—
and that is just as true after incorporation as before.
B
If incorporation is the doctrinal shift that Gamble in-
vokes to justify a departure from precedent, the practical
change he cites is the proliferation of federal criminal law.
Gamble says that the resulting overlap of federal and
criminal codes heightens the risk of successive prosecu-
tions under state and federal law for the same criminal
conduct. Thus, Gamble contends, our precedent should
yield to “ ‘far-reaching systemic and structural changes’ ”
that make our “earlier error all the more egregious and
Cite as: 587 U. S. ____ (2019) 31
Opinion of the Court
harmful.” South Dakota v. Wayfair, Inc., 585 U.S. ___,
___ (2018) (slip op., at 18). But unlike Gamble’s appeal to
incorporation, this argument obviously assumes that the
dual-sovereignty doctrine was legal error from the start.
So the argument is only as strong as Gamble’s argument
about the original understanding of double jeopardy
rights, an argument that we have found wanting.
Insofar as the expansion of the reach of federal criminal
law has been questioned on constitutional rather than
policy grounds, the argument has focused on whether
Congress has overstepped its legislative powers under the
Constitution. See, e.g., Gonzales v. Raich, 545 U.S. 1, 57–
74 (2005) (THOMAS, J., dissenting). Eliminating the dual-
sovereignty rule would do little to trim the reach of federal
criminal law, and it would not even prevent many succes-
sive state and federal prosecutions for the same criminal
conduct unless we also overruled the long-settled rule that
an “offence” for double jeopardy purposes is defined by
statutory elements, not by what might be described in a
looser sense as a unit of criminal conduct. See Block-
burger v. United States, 284 U.S. 299 (1932). Perhaps
believing that two revolutionary assaults in the same case
would be too much, Gamble has not asked us to overrule
Blockburger along with the dual-sovereignty rule.
* * *
The judgment of the Court of Appeals for the Eleventh
Circuit is affirmed.
It is so ordered.
Cite as: 587 U. S. ____ (2019) 1
THOMAS, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 17–646
_________________
TERANCE MARTEZ GAMBLE, PETITIONER v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
[June 17, 2019]
JUSTICE THOMAS, concurring.
I agree that the historical record does not bear out my
initial skepticism of the dual-sovereignty doctrine. See
Puerto Rico v. Sánchez Valle, 579 U.S. ___ (2016)
(GINSBURG, J., joined by THOMAS, J. concurring).
The founding generation foresaw very limited potential for
overlapping criminal prosecutions by the States and the
Federal Government.1 The Founders therefore had no
reason to address the double jeopardy question that the
Court resolves today. Given their understanding of Con-
gress’ limited criminal jurisdiction and the absence of an
analogous dual-sovereign system in England, it is difficult
to conclude that the People who ratified the Fifth Amend-
——————
1 As the Court suggests, Congress is responsible for the proliferation
of duplicative prosecutions for the same offenses by the States and the
Federal Government. Ante, at 28. By legislating beyond its limited
powers, Congress has taken from the People authority that they never
gave. U. S. Const., Art. I, §8; The Federalist No. 22, p. 152 (C. Rossiter
ed. 1961) (“all legitimate authority” derives from “the consent of the
people” (capitalization omitted)). And the Court has been complicit by
blessing this questionable expansion of the Commerce Clause. See, e.g.,
Gonzales v. Raich, 545 U.S. 1, 57–74 (2005) (THOMAS, J., dissenting).
Indeed, it seems possible that much of Title 18, among other parts of
the U. S. Code, is premised on the Court’s incorrect interpretation of
the Commerce Clause and is thus an incursion into the States’ general
criminal jurisdiction and an imposition on the People’s liberty.
2 GAMBLE v. UNITED STATES
THOMAS, J., concurring
ment understood it to prohibit prosecution by a State and
the Federal Government for the same offense. And, of
course, we are not entitled to interpret the Constitution to
align it with our personal sensibilities about “ ‘unjust’ ”
prosecutions. Post, at 6 (GINSBURG, J., dissenting); see
Currier v. Virginia, 585 U.S. ___, ___ (2018) (plurality
opinion) (slip op., at 16) (“While the growing number of
criminal offenses in our statute books may be cause for
concern, no one should expect (or want) judges to revise
the Constitution to address every social problem they
happen to perceive” (citation omitted)).
I write separately to address the proper role of the
doctrine of stare decisis. In my view, the Court’s typical
formulation of 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. It is always “tempting for judges to confuse our own
preferences with the requirements of the law,” Obergefell
v. Hodges, 576 U.S. ___, ___ (2015) (ROBERTS, C. J., dis-
senting) (slip op., at 3), and the Court’s stare decisis doc-
trine exacerbates that temptation by giving the veneer of
respectability to our continued application of demonstra-
bly incorrect precedents. By applying demonstrably erro-
neous precedent instead of the relevant law’s text—as the
Court is particularly prone to do when expanding federal
power or crafting new individual rights—the Court exer-
cises “force” and “will,” two attributes the People did not
give it. The Federalist No. 78, p. 465 (C. Rossiter ed. 1961)
(capitalization omitted).
We should restore our stare decisis jurisprudence to
ensure that we exercise “mer[e] judgment,” ibid., which
can be achieved through adherence to the correct, original
meaning of the laws we are charged with applying. In my
Cite as: 587 U. S. ____ (2019) 3
THOMAS, J., concurring
view, anything less invites arbitrariness into judging.2
I
The Court currently views stare decisis as a “ ‘principle
of policy’ ” that balances several factors to decide whether
the scales tip in favor of overruling precedent. Citizens
United v. Federal Election Comm’n, 558 U.S. 310, 363
(2010) (quoting Helvering v. Hallock, 309 U.S. 106, 119
(1940)). Among these factors are the “workability” of the
standard, “the antiquity of the precedent, the reliance
interests at stake, and of course whether the decision was
well reasoned.” Montejo v. Louisiana, 556 U.S. 778, 792–
793 (2009). The influence of this last factor tends to ebb
and flow with the Court’s desire to achieve a particular
end, and the Court may cite additional, ad hoc factors to
reinforce the result it chooses. But the shared theme is
the need for a “special reason over and above the belief
that a prior case was wrongly decided” to overrule a prec-
edent. Planned Parenthood of Southeastern Pa. v. Casey,
505 U.S. 833, 864 (1992). The Court has advanced this
view of stare decisis on the ground that “it promotes the
evenhanded, predictable, and consistent development of
legal principles” and “contributes to the actual and per-
ceived integrity of the judicial process.” Payne v. Tennes-
see, 501 U.S. 808, 827 (1991).
This approach to stare decisis might have made sense in
a common-law legal system in which courts systematically
developed the law through judicial decisions apart from
written law. But our federal system is different. The
Constitution tasks the political branches—not the Judici-
ary—with systematically developing the laws that govern
our society. The Court’s role, by contrast, is to exercise the
——————
2 My focus in this opinion is on this Court’s adherence to its own prec-
edents. I make no claim about any obligation of “inferior” federal
courts, U. S. Const., Art. III, §1, or state courts to follow Supreme Court
precedent.
4 GAMBLE v. UNITED STATES
THOMAS, J., concurring
“judicial Power,” faithfully interpreting the Constitution
and the laws enacted by those branches. Art. III, §1.
A
A proper understanding of stare decisis in our constitu-
tional structure requires a proper understanding of the
nature of the “judicial Power” vested in the federal courts.
That “Power” is—as Chief Justice Marshall put it—the
power “to say what the law is” in the context of a particu-
lar “case” or “controversy” before the court. Marbury v.
Madison, 1 Cranch 137, 177 (1803); Art. III, §2. Phrased
differently, the “judicial Power” “is fundamentally the
power to decide cases in accordance with law.” Lawson,
The Constitutional Case Against Precedent, 17 Harv. J. L.
& Pub. Pol’y 23, 26 (1994) (Lawson). It refers to the duty
to exercise “judicial discretion” as distinct from “arbitrary
discretion.” The Federalist No. 78, at 468, 471.
That means two things, the first prohibitory and the
second obligatory. First, the Judiciary lacks “force” (the
power to execute the law) and “will” (the power to legis-
late). Id., at 465 (capitalization omitted). Those powers
are vested in the President and Congress, respectively.
“Judicial power is never exercised for the purpose of giving
effect to the will of the Judge; always for the purpose of
giving effect to the will of the Legislature; or, in other
words, to the will of the law.” Osborn v. Bank of United
States, 9 Wheat. 738, 866 (1824) (Marshall, C. J.). The
Judiciary thus may not “substitute [its] own pleasure to
the constitutional intentions of the legislature.” The
Federalist No. 78, at 468–469.
Second, “judicial discretion” requires the “liquidat[ion]”
or “ascertain[ment]” of the meaning of the law. Id., at
467–468; see id., No. 37. At the time of the founding, “to
liquidate” meant “to make clear or plain”; “to render un-
ambiguous; to settle (differences, disputes).” Nelson, Stare
Decisis and Demonstrably Erroneous Precedents, 87 Va.
Cite as: 587 U. S. ____ (2019) 5
THOMAS, J., concurring
L. Rev. 1, 13, and n. 35 (2001) (Nelson) (quoting 8 Oxford
English Dictionary 1012 (2d ed. 1991); (internal quotation
marks omitted)). Therefore, judicial discretion is not the
power to “alter” the law; it is the duty to correctly “ex-
pound” it. Letter from J. Madison to N. Trist (Dec. 1831),
in 9 The Writings of James Madison 477 (G. Hunt ed.
1910) (Writings of Madison).
B
This understanding of the judicial power had long been
accepted at the time of the founding. But the federalist
structure of the constitutional plan had significant impli-
cations for the exercise of that power by the newly created
Federal Judiciary. Whereas the common-law courts of
England discerned and defined many legal principles in
the first instance, the Constitution charged federal courts
primarily with applying a limited body of written laws
articulating those legal principles. This shift profoundly
affects the application of stare decisis today.
Stare decisis has its pedigree in the unwritten common
law of England. As Blackstone explained, the common law
included “[e]stablished customs” and “[e]stablished rules
and maxims” that were discerned and articulated by
judges. 1 W. Blackstone, Commentaries on the Laws of
England 68–69 (1765) (Blackstone). In the common-law
system, stare decisis played an important role because
“judicial decisions [were] the principal and most authorita-
tive evidence, that [could] be given, of the existence of such
a custom as shall form a part of the common law.” Id.,
at 69. Accordingly, “precedents and rules must be fol-
lowed, unless flatly absurd or unjust,” because a judge
must issue judgments “according to the known laws and
customs of the land” and not “according to his private
sentiments” or “own private judgment.” Id., at 69–70. In
other words, judges were expected to adhere to precedents
because they embodied the very law the judges were
6 GAMBLE v. UNITED STATES
THOMAS, J., concurring
bound to apply.
“[C]ommon law doctrines, as articulated by judges, were
seen as principles that had been discovered rather than
new laws that were being made.” 3–4 G. White, The
Marshall Court and Cultural Change, 1815–35, History of
the Supreme Court of the United States 129 (1988).3 “It
was the application of the dictates of natural justice, and
of cultivated reason, to particular cases.” 1 J. Kent, Com-
mentaries on American Law 439 (1826) (Kent); see id., at
439–440 (the common law is “ ‘not the product of the wis-
dom of some one man, or society of men, in any one age;
but of the wisdom, counsel, experience, and observation, of
many ages of wise and observing men’ ”). The common law
therefore rested on “unarticulated social processes to
mobilize and coordinate knowledge” gained primarily
through “the social experience of the many,” rather than
the “specifically articulated reason of the few.” T. Sowell,
A Conflict of Visions: Ideological Origins of Political
Struggles 49, 42 (1987). In other words, the common law
was based in the collective, systematic development of the
law through reason. See id., at 49–55.
Importantly, however, the common law did not view
precedent as unyielding when it was “most evidently
contrary to reason” or “divine law.” Blackstone 69–70.
The founding generation recognized that a “judge may
mistake the law.” Id., at 71; see also 1 Kent 444 (“Even a
series of decisions are not always conclusive evidence of
what is law”). And according to Blackstone, judges should
disregard precedent that articulates a rule incorrectly
when necessary “to vindicate the old [rule] from misrepre-
——————
3 Our founding documents similarly rest on the premise that certain
fundamental principles are both knowable and objectively true. See,
e.g., Declaration of Independence (“We hold these truths to be self-
evident, that all men are created equal, that they are endowed by their
Creator with certain unalienable Rights, that among these are Life,
Liberty, and the pursuit of Happiness”).
Cite as: 587 U. S. ____ (2019) 7
THOMAS, J., concurring
sentation.” Blackstone 70; see also 1 Kent 443 (“If . . . any
solemnly adjudged case can be shown to be founded in
error, it is no doubt the right and the duty of the judges
who have a similar case before them, to correct the error”).
He went further: When a “former decision is manifestly
absurd or unjust” or fails to conform to reason, it is not
simply “bad law,” but “not law” at all. Blackstone 70
(emphasis). This view—that demonstrably erroneous
“blunders” of prior courts should be corrected—was ac-
cepted by state courts throughout the 19th century. See,
e.g., McDowell v. Oyer, 21 Pa. 417, 423 (1853); Guild v.
Eager, 17 Mass. 615, 622 (1822).
This view of precedent implies that even common-law
judges did not act as legislators, inserting their own pref-
erences into the law as it developed. Instead, consistent
with the nature of the judicial power, common-law judges
were tasked with identifying and applying objective prin-
ciples of law—discerned from natural reason, custom, and
other external sources—to particular cases. See Nelson
23–27. Thus, the founding generation understood that an
important function of the Judiciary in a common-law
system was to ascertain what reason or custom required;
that it was possible for courts to err in doing so; and that
it was the Judiciary’s responsibility to “examin[e] without
fear, and revis[e] without reluctance,” any “hasty and
crude decisions” rather than leaving “the character of [the]
law impaired, and the beauty and harmony of the system
destroyed by the perpetuity of error.” 1 Kent 444.
Federal courts today look to different sources of law
when exercising the judicial power than did the common-
law courts of England. The Court has long held that
“[t]here is no federal general common law.” Erie R. Co. v.
Tompkins, 304 U.S. 64, 78 (1938). Instead, the federal
courts primarily interpret and apply three bodies of fed-
eral positive law—the Constitution; federal statutes, rules,
8 GAMBLE v. UNITED STATES
THOMAS, J., concurring
and regulations; and treaties.4 That removes most (if
not all) of the force that stare decisis held in the English
common-law system, where judicial precedents were among
the only documents identifying the governing “customs” or
“rules and maxims.” Blackstone 68. We operate in a
system of written law in which courts need not—and
generally cannot—articulate the law in the first instance.
See U. S. Const., Art. I, §1 (vesting “[a]ll legislative Pow-
ers” in Congress); Art. 1, §7 (describing the bicameralism
and presentment process). The 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 writ-
ten law to the facts of particular cases.
Underlying this legal system is the key premise that
words, including written laws, are capable of objective,
ascertainable meaning. As I have previously explained,
“[m]y vision of the process of judging is unabashedly based
on the proposition that there are right and wrong answers
to legal questions.” Thomas, Judging, 45 U. Kan. L. Rev.
1, 5 (1996). Accordingly, judicial decisions may incorrectly
interpret the law, and when they do, subsequent courts
must confront the question when to depart from them.
C
Given that the primary role of federal courts today is to
interpret legal texts with ascertainable meanings, prece-
dent plays a different role in our exercise of the “judicial
Power” than it did at common law. In my view, if the
Court encounters a decision that is demonstrably errone-
ous—i.e., one that is not a permissible interpretation of
——————
4 There are certain exceptions to this general rule, including areas of
law in which federal common law has historically been understood to
govern (e.g., admiralty) and well-established judicial doctrines that are
applied in the federal courts (e.g., issue preclusion). Additionally,
federal courts apply state law where it governs.
Cite as: 587 U. S. ____ (2019) 9
THOMAS, J., concurring
the text—the Court should correct the error, regardless of
whether other factors support overruling the precedent.
Federal courts may (but need not) adhere to an incorrect
decision as precedent, but only when traditional tools of
legal interpretation show that the earlier decision adopted
a textually permissible interpretation of the law. A de-
monstrably incorrect judicial decision, by contrast, is
tantamount to making law, and adhering to it both disre-
gards the supremacy of the Constitution and perpetuates
a usurpation of the legislative power.
1
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 su-
premacy over other sources of law—including our own
precedents. That the Constitution outranks other sources
of law is inherent in its nature. See A. Amar, America’s
Constitution 5 (2005) (explaining that the Constitution is
a constitutive document); Kesavan, The Three Tiers of
Federal Law, 100 NW.U. L. Rev. 1479, 1499, n. 99 (2006)
(arguing that “[i]t is unnecessary for the Constitution to
specify that it is superior to other law because it is higher
law made by We the People—and the only such law”). The
Constitution’s supremacy is also reflected in its require-
ment that all judicial officers, executive officers, Con-
gressmen, and state legislators take an oath to “support
this Constitution.” Art. VI, cl. 3; see also Art. II, §1, cl. 8
(requiring the President to “solemnly swear (or affirm)” to
“preserve, protect and defend the Constitution of the
United States”). Notably, the Constitution does not man-
date that judicial officers swear to uphold judicial prece-
dents. And the Court has long recognized the supremacy
of the Constitution with respect to executive action and
“legislative act[s] repugnant to” it. Marbury, 1 Cranch, at
177; Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.
10 GAMBLE v. UNITED STATES
THOMAS, J., concurring
579, 587–589 (1952); see also The Federalist No. 78, at 467
(“No legislative act, therefore, contrary to the Constitu-
tion, can be valid”).
The same goes for judicial precedent. The “judicial
Power” must be understood in light of “the Constitution’s
status as the supreme legal document” over “lesser sources
of law.” Lawson, 29–30. This status necessarily limits
“the power of a court to give legal effect to prior judicial
decisions” that articulate demonstrably erroneous inter-
pretations of the Constitution because those prior deci-
sions cannot take precedence over the Constitution itself.
Ibid. Put differently, because the Constitution is supreme
over other sources of law, it requires us to privilege its text
over our own precedents when the two are in conflict. I
am aware of no legitimate reason why a court may privi-
lege a demonstrably erroneous interpretation of the Con-
stitution over the Constitution itself.5
The same principle applies when interpreting statutes
and other sources of law: If a prior decision demonstrably
erred in interpreting such a law, federal judges should
exercise the judicial power—not perpetuate a usurpation
of the legislative power—and correct the error. A contrary
rule would permit judges to “substitute their own pleas-
ure” for the law. The Federalist No. 78, at 468; see id., at
——————
5 Congress and the Executive likewise must independently evaluate
the constitutionality of their actions; they take an oath to uphold the
Constitution, not to blindly follow judicial precedent. In the context of
a judicial case or controversy, however, their determinations do not
bind the Judiciary in performing its constitutionally assigned role. See,
e.g., Zivotofsky v. Clinton, 566 U.S. 189, 197 (2012) (noting that there
is “no exclusive commitment to the Executive of the power to determine
the constitutionality of a statute”); INS v. Chadha, 462 U.S. 919, 944
(1983) (Congress’ and President’s endorsement of “legislative veto”
“sharpened rather than blunted” Court’s judicial review). Of course,
consistent with the nature of the “judicial Power,” the federal courts’
judgments bind all parties to the case, including Government officials
and agencies.
Cite as: 587 U. S. ____ (2019) 11
THOMAS, J., concurring
466 (“ ‘[T]here is no liberty if the power of judging be not
separated from the legislative and executive powers’ ”).
In sum, my view of stare decisis requires adherence to
decisions made by the People—that is, to the original
understanding of the relevant legal text—which may not
align with decisions made by the Court. Accord, Marshall
v. Baltimore & Ohio R. Co., 16 How. 314, 343–344 (1854)
(Daniel, J., dissenting) (“Wherever the Constitution com-
mands, discretion terminates” because continued adher-
ence to “palpable error” is a “violation of duty, an usurpa-
tion”); Commonwealth v. Posey, 8 Va. 109, 116 (1787)
(opinion of Tazewell, J.) (“[A]lthough I venerate prece-
dents, I venerate the written law more”). Thus, no “ ‘spe-
cial justification’ ” is needed for a federal court to depart
from its own, demonstrably erroneous precedent. Halli-
burton Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 266
(2014); see Nelson 62. Considerations beyond the correct
legal meaning, including reliance, workability, and whether
a precedent “has become well embedded in national
culture,” S. Breyer, Making our Democracy Work: A
Judge’s View 152 (2010), are inapposite. In our constitu-
tional structure, our role of upholding the law’s original
meaning is reason enough to correct course.6
2
Although precedent does not supersede the original
meaning of a legal text, it may remain relevant when it is
not demonstrably erroneous. As discussed, the “judicial
——————
6I am not suggesting that the Court must independently assure itself
that each precedent relied on in every opinion is correct as a matter of
original understanding. We may, consistent with our constitutional
duty and the Judiciary’s historical practice, proceed on the understand-
ing that our predecessors properly discharged their constitutional role
until we have reason to think otherwise—as, for example, when a party
raises the issue or a previous opinion persuasively critiques the dis-
puted precedent.
12 GAMBLE v. UNITED STATES
THOMAS, J., concurring
Power” requires the Court to clarify and settle—or, as
Madison and Hamilton put it, to “liquidate”—the meaning
of written laws. The Federalist No. 78, at 468 (“[I]t is the
province of the courts to liquidate and fix [the] meaning
and operation [of contradictory laws]”); The Federalist No.
37, at 229 (explaining that the indeterminacy of laws
requires courts to “liquidat[e] and ascertai[n]” their mean-
ing “by a series of particular discussions and adjudica-
tions”). This need to liquidate arises from the inability of
human language to be fully unequivocal in every context.
Written laws “have a range of indeterminacy,” and rea-
sonable people may therefore arrive at different conclu-
sions about the original meaning of a legal text after
employing all relevant tools of interpretation. See Nelson
11, 14. It is within that range of permissible interpreta-
tions that precedent is relevant. If, for example, the
meaning of a statute has been “liquidated” in a way that is
not demonstrably erroneous (i.e., not an impermissible
interpretation of the text), the judicial policy of stare deci-
sis permits courts to constitutionally adhere to that inter-
pretation, even if a later court might have ruled another
way as a matter of first impression. Of course, a subse-
quent court may nonetheless conclude that an incorrect
precedent should be abandoned, even if the precedent
might fall within the range of permissible interpretations.
But nothing in the Constitution requires courts to take
that step.
Put another way, there is room for honest disagreement,
even as we endeavor to find the correct answer. Compare
McIntyre v. Ohio Elections Comm’n, 514 U.S. 334,
358–371 (1995) (THOMAS, J., concurring in judg-
ment) (concluding that the “historical evidence from the
framing” supports the view that the First Amend-
ment permitted anonymous speech), with id., at 371–385
(Scalia, J., dissenting) (concluding that the First Amendment
does not protect anonymous speech based on a century of
practice in the States). Reasonable jurists can apply
Cite as: 587 U. S. ____ (2019) 13
THOMAS, J., concurring
traditional tools of construction and arrive at different
interpretations of legal texts.
“[L]iquidating” indeterminacies in written laws is far
removed from expanding or altering them. See Writings of
Madison 477 (explaining that judicial decisions cannot
“alter” the Constitution, only “expound” it). The original
meaning of legal texts “usually . . . is easy to discern and
simple to apply.” A. Scalia, Common Law Courts in a
Civil-Law System, in A Matter of Interpretation: Federal
Courts and the Law 45 (A. Gutmann ed. 1997). And even
in difficult cases, that the original meaning is not obvious
at first blush does not excuse the Court from diligently
pursuing that meaning. Stopping the interpretive inquiry
short—or allowing personal views to color it—permits
courts to substitute their own preferences over the text.
Although the law may be, on rare occasion, truly ambigu-
ous—meaning susceptible to multiple, equally correct
legal meanings—the law never “runs out” in the sense
that a Court may adopt an interpretation beyond the
bounds of permissible construction.7 In that regard, a
legal text is not capable of multiple permissible interpreta-
tions merely because discerning its original meaning
“requires a taxing inquiry.” Pauley v. BethEnergy Mines,
Inc., 501 U.S. 680, 707 (1991) (Scalia, J., dissenting).
This case is a good example. The historical record pre-
sents knotty issues about the original meaning of the Fifth
Amendment, and JUSTICE GORSUCH does an admirable job
arguing against our longstanding interpretation of the
Double Jeopardy Clause. Although JUSTICE GORSUCH
identifies support for his view in several postratification
treatises, see post, at 13–15 (dissenting opinion), I do not
——————
7 Indeed, if a statute contained no objective meaning, it might consti-
tute an improper delegation of legislative power to the Judicial Branch,
among other problems. See Touby v. United States, 500 U.S. 160, 165
(1991) (discussing the nondelegation doctrine).
14 GAMBLE v. UNITED STATES
THOMAS, J., concurring
find these treatises conclusive without a stronger showing
that they reflected the understanding of the Fifth
Amendment at the time of ratification. At that time, the
common law certainly had not coalesced around this view,
see ante, at 10–21, and petitioner has not pointed to con-
temporaneous judicial opinions or other evidence estab-
lishing that his view was widely shared. This lack of
evidence, coupled with the unique two-sovereign federalist
system created by our Constitution, leaves petitioner to
rely on a general argument about “liberty.” Ultimately, I
am not persuaded that our precedent is incorrect as an
original matter, much less demonstrably erroneous.
3
Although this case involves a constitutional provision, I
would apply the same stare decisis principles to matters of
statutory interpretation. I am not aware of any legal (as
opposed to practical) basis for applying a heightened
version of stare decisis to statutory-interpretation deci-
sions. Statutes are easier to amend than the Constitution,
but our judicial duty is to apply the law to the facts of the
case, regardless of how easy it is for the law to change. Cf.
Clark v. Martinez, 543 U.S. 371, 402 (2005) (THOMAS, J.,
dissenting) (explaining that “the realities of the legislative
process” will “often preclude readopting the original mean-
ing of a statute that we have upset”). Moreover, to the
extent the Court has justified statutory stare decisis based
on legislative inaction, this view is based on the “patently
false premise that the correctness of statutory construc-
tion is to be measured by what the current Congress de-
sires, rather than by what the law as enacted meant.”
Johnson v. Transportation Agency, Santa Clara Cty., 480
U.S. 616, 671 (1987) (Scalia, J., dissenting). Finally, even
if congressional silence could be meaningfully understood
as acquiescence, it still falls short of the bicameralism and
presentment required by Article I and therefore is not a
Cite as: 587 U. S. ____ (2019) 15
THOMAS, J., concurring
“valid way for our elected representatives to express their
collective judgment.” Nelson 76.
II
For the reasons explained above, the Court’s multifactor
approach to stare decisis invites conflict with its constitu-
tional duty. Whatever benefits may be seen to inhere in
that approach—e.g., “stability” in the law, preservation of
reliance interests, or judicial “humility,” Tr. of Oral Arg.
20, 41–42—they cannot overcome that fundamental flaw.
In any event, these oft-cited benefits are frequently
illusory. The Court’s multifactor balancing test for invok-
ing stare decisis has resulted in policy-driven, “arbitrary
discretion.” The Federalist No. 78, at 471. The inquiry
attempts to quantify the unquantifiable and, by frequently
sweeping in subjective factors, provides a ready means of
justifying whatever result five Members of the Court seek
to achieve. See Holder v. Hall, 512 U.S. 874, 943–944
(1994) (THOMAS, J., concurring in judgment) (describing a
“ ‘totality of circumstances’ ” test as “an empty incanta-
tion—a mere conjurer’s trick”); Lawrence v. Texas, 539
U.S. 558, 577 (2003) (acknowledging that stare decisis is
“ ‘a principle of policy and not a mechanical formula’ ”); see
also Casey, 505 U. S., at 854–856 (invoking the “kind of
reliance that would lend a special hardship to the conse-
quences of overruling and add inequity to the cost of repu-
diation”). These are not legal questions with right and
wrong answers; they are policy choices. See, e.g., A. Gold-
berg, Equal Justice: The Warren Era of the Supreme
Court 96 (1971) (“[T]his concept of stare decisis both justi-
fies the overruling involved in the expansion of human
liberties during the Warren years and counsels against
the future overruling of the Warren Court libertarian
decisions”).
Members of this Court have lamented the supposed
“uncertainty” created when the Court overrules its prece-
16 GAMBLE v. UNITED STATES
THOMAS, J., concurring
dent. See Franchise Tax Bd. of Cal. v. Hyatt, ante, at ___–
___ (BREYER, J., dissenting) (slip op., at 12–13). But see
Lawrence, supra, at 577 (asserting that not overruling
precedent would “caus[e] uncertainty”). As I see it, we
would eliminate a significant amount of uncertainty and
provide the very stability sought if we replaced our malle-
able balancing test with a clear, principled rule grounded
in the meaning of the text.
The true irony of our modern stare decisis doctrine lies
in the fact that proponents of stare decisis tend to invoke it
most fervently when the precedent at issue is least defen-
sible. See, e.g., Holder, supra, at 944–945 (opinion of
THOMAS, J.) (“Stare decisis should not bind the Court to an
interpretation of the Voting Rights Act that was based on
a flawed method of statutory construction from its incep-
tion” and that has created “an irreconcilable conflict”
between the Act and the Equal Protection Clause and
requires “methodically carving the country into racially
designated electoral districts”). It is no secret that stare
decisis has had a “ratchet-like effect,” cementing certain
grievous departures from the law into the Court’s juris-
prudence. Goldberg, supra, at 96. Perhaps the most
egregious example of this illegitimate use of stare decisis
can be found in our “substantive due process” jurispru-
dence. McDonald v. Chicago, 561 U.S. 742, 811 (2010)
(THOMAS, J., concurring in part and concurring in judg-
ment). The Court does not seriously defend the “legal
fiction” of substantive due process as consistent with the
original understanding of the Due Process Clause. Ibid.
And as I have explained before, “this fiction is a particu-
larly dangerous one” because it “lack[s] a guiding principle
to distinguish ‘fundamental’ rights that warrant protec-
tion from nonfundamental rights that do not.” Ibid.
Unfortunately, the Court has doggedly adhered to these
erroneous substantive-due-process precedents again and
again, often to disastrous ends. See, e.g., Stenberg v.
Cite as: 587 U. S. ____ (2019) 17
THOMAS, J., concurring
Carhart, 530 U.S. 914, 982 (2000) (THOMAS, J., dissent-
ing) (“The standard set forth in the Casey plurality has no
historical or doctrinal pedigree” and “is the product of its
authors’ own philosophical views about abortion” with “no
origins in or relationship to the Constitution”). Likewise,
the Court refuses to reexamine its jurisprudence about the
Privileges or Immunities Clause, thereby relegating a
“ ‘clause in the constitution’ ” “ ‘to be without effect.’ ”
McDonald, supra, at 813 (quoting Marbury, 1 Cranch, at
174); see Timbs v. Indiana, 586 U.S. ___, ___ (2019)
(THOMAS, J., concurring in judgment) (criticizing the
Court’s incorporation doctrine through a clause that ad-
dresses procedures). No subjective balancing test can
justify such a wholesale disregard of the People’s individ-
ual rights protected by the Fourteenth Amendment.
* * *
Our judicial duty to interpret the law requires adher-
ence to the original meaning of the text. For that reason,
we should not invoke stare decisis to uphold precedents
that are demonstrably erroneous. Because petitioner and
the dissenting opinions have not shown that the Court’s
dual-sovereignty doctrine is incorrect, much less demon-
strably erroneous, I concur in the majority’s opinion.
Cite as: 587 U. S. ____ (2019) 1
GINSBURG, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 17–646
_________________
TERANCE MARTEZ GAMBLE, PETITIONER v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
[June, 17, 2019]
JUSTICE GINSBURG, dissenting
Terance Martez Gamble pleaded guilty in Alabama
state court to both possession of a firearm by a person
convicted of “a crime of violence” and drug possession, and
was sentenced to ten years’ imprisonment, all but one year
suspended. Apparently regarding Alabama’s sentence as
too lenient, federal prosecutors pursued a parallel charge,
possession of a firearm by a convicted felon, in violation of
federal law. Gamble again pleaded guilty and received
nearly three more years in prison.
Had either the Federal Government or Alabama brought
the successive prosecutions, the second would have violated
Gamble’s right not to be “twice put in jeopardy . . . for the
same offence.” U. S. Const., Amdt. 5, cl. 2. Yet the Federal
Government was able to multiply Gamble’s time in prison
because of the doctrine that, for double jeopardy purposes,
identical criminal laws enacted by “separate sovereigns”
are different “offence[s].”
I dissent from the Court’s adherence to that misguided
doctrine. Instead of “fritter[ing] away [Gamble’s] libert[y]
upon a metaphysical subtlety, two sovereignties,” Grant,
The Lanza Rule of Successive Prosecutions, 32 Colum.
L. Rev. 1309, 1331 (1932), I would hold that the Double
Jeopardy Clause bars “successive prosecutions [for the
same offense] by parts of the whole USA.” Puerto Rico v.
2 GAMBLE v. UNITED STATES
GINSBURG, J., dissenting
Sánchez Valle, 579 U.S. ___, ___ (2016) (GINSBURG, J.,
concurring) (slip op., at 2).
I
A
Gamble urges that the Double Jeopardy Clause incorpo-
rates English common law. That law, he maintains, rec-
ognized a foreign acquittal or conviction as a bar to retrial
in England for the same offense. See Brief for Petitioner
11–15. The Court, in turn, strives mightily to refute
Gamble’s account of the common law. See ante, at 8–21.
This case, however, does not call for an inquiry into
whether and when an 18th-century English court would
have credited a foreign court’s judgment in a criminal
case. Gamble was convicted in both Alabama and the
United States, jurisdictions that are not foreign to each
other. English court decisions regarding the respect due
to a foreign nation’s judgment are therefore inapposite.
B
In United States v. Lanza, 260 U.S. 377 (1922), this
Court held that “an act denounced as a crime by both
national and state sovereignties is an offense against the
peace and dignity of both and may be punished by each.”
Id., at 382. Decades later, a sharply divided Court reaf-
firmed this separate-sovereigns doctrine. Abbate v. United
States, 359 U.S. 187 (1959); Bartkus v. Illinois, 359 U.S.
121 (1959). I would not cling to those ill-advised decisions.
1
Justification for the separate-sovereigns doctrine cen-
ters on the word “offence”: An “offence,” the argument
runs, is the violation of a sovereign’s law, the United
States and each State are separate sovereigns, ergo suc-
cessive state and federal prosecutions do not place a de-
fendant in “jeopardy . . . for the same offence.” Ante, at 1,
3–4 (internal quotation marks omitted).
Cite as: 587 U. S. ____ (2019) 3
GINSBURG, J., dissenting
This “compact syllogism” is fatally flawed. See Braun,
Praying to False Sovereigns: The Rule Permitting Succes-
sive Prosecutions in the Age of Cooperative Federalism, 20
Am. J. Crim. L. 1, 25 (1992). The United States and its
constituent States, unlike foreign nations, are “kindred
systems,” “parts of ONE WHOLE.” The Federalist No. 82,
p. 493 (C. Rossiter ed. 1961) (A. Hamilton). They compose
one people, bound by an overriding Federal Constitution.
Within that “WHOLE,” the Federal and State Govern-
ments should be disabled from accomplishing together
“what neither government [could] do alone—prosecute an
ordinary citizen twice for the same offence.” Amar &
Marcus, Double Jeopardy Law After Rodney King, 95
Colum. L. Rev. 1, 2 (1995).
The notion that the Federal Government and the States
are separate sovereigns overlooks a basic tenet of our
federal system. The doctrine treats governments as sover-
eign, with state power to prosecute carried over from years
predating the Constitution. See Heath v. Alabama, 474
U.S. 82, 89 (1985) (citing Lanza, 260 U. S., at 382). In the
system established by the Federal Constitution, however,
“ultimate sovereignty” resides in the governed. Arizona
State Legislature v. Arizona Independent Redistricting
Comm’n, 576 U.S. ___, ___ (2015) (slip op., at 31); Martin
v. Hunter’s Lessee, 1 Wheat. 304, 324–325 (1816); Braun,
supra, at 26–30. Insofar as a crime offends the “peace and
dignity” of a sovereign, Lanza, 260 U. S., at 382, that
“sovereign” is the people, the “original fountain of all
legitimate authority,” The Federalist No. 22, at 152 (A.
Hamilton); see Note, Double Prosecution by State and
Federal Governments: Another Exercise in Federalism, 80
Harv. L. Rev. 1538, 1542 (1967). States may be separate,
but their populations are part of the people composing the
United States.
In our “compound republic,” the division of authority
between the United States and the States was meant to
4 GAMBLE v. UNITED STATES
GINSBURG, J., dissenting
operate as “a double security [for] the rights of the people.”
The Federalist No. 51, at 323 (J. Madison); see Bond v.
United States, 564 U.S. 211, 221 (2011). The separate-
sovereigns doctrine, however, scarcely shores up people’s
rights. Instead, it invokes federalism to withhold liberty.
See Bartkus, 359 U. S., at 155–156 (Black, J., dissenting).1
It is the doctrine’s premise that each government has—
and must be allowed to vindicate—a distinct interest in
enforcing its own criminal laws. That is a peculiar way to
look at the Double Jeopardy Clause, which by its terms
safeguards the “person” and restrains the government.
See, e.g., id., at 155; United States v. All Assets of G.P.S.
Automotive Corp., 66 F.3d 483, 498 (CA2 1995) (Calabresi,
J., concurring). The Double Jeopardy Clause embodies a
principle, “deeply ingrained” in our system of justice,
“that the State with all its resources and power should
not be allowed to make repeated attempts to convict
an individual for an alleged offense, thereby subject-
ing him to embarrassment, expense and ordeal and
compelling him to live in a continuing state of anxiety
and insecurity, as well as enhancing the possibility
that even though innocent he may be found guilty.”
Green v. United States, 355 U.S. 184, 187–188 (1957).
“Looked at from the standpoint of the individual who is
being prosecuted,” the liberty-denying potential of succes-
sive prosecutions, when Federal and State Governments
prosecute in tandem, is the same as it is when either
prosecutes twice. Bartkus, 359 U. S., at 155 (Black, J.,
——————
1 The Court writes that federalism “advances individual liberty in
many ways,” but does not always do so. Ante, at 10 (citing, for example,
state prohibition of activities authorized by federal law). The analogy
of the separate-sovereigns doctrine to dual regulation is inapt. The
former erodes a constitutional safeguard against successive prosecu-
tions, while the Constitution contains no guarantee against dual
regulation.
Cite as: 587 U. S. ____ (2019) 5
GINSBURG, J., dissenting
dissenting).
2
I turn, next, to further justifications the Court has
supplied for the separate-sovereigns doctrine. None
should survive close inspection.
a
One rationale emphasizes that the Double Jeopardy
Clause originally restrained only the Federal Government
and did not bar successive state prosecutions. Id., at 124;
Lanza, 260 U. S., at 382; Fox v. Ohio, 5 How. 410, 434–435
(1847). Incorporation of the Clause as a restraint on
action by the States, effected in Benton v. Maryland, 395
U.S. 784 (1969), has rendered this rationale obsolete.
b
Another justification is precedent. In adopting and
reaffirming the separate-sovereigns doctrine, the Court
relied on dicta from 19th-century opinions. See Abbate,
359 U. S., at 190–193; Bartkus, 359 U. S., at 129–132;
Lanza, 260 U. S., at 382–384. The persuasive force of
those opinions is diminished by their dubious reasoning.
See supra, at 2–4. While drawing upon dicta from prior
opinions, the Court gave short shrift to contrary authority.
See Braun, supra, at 20–23.
First, the Framers of the Bill of Rights voted down an
amendment that would have permitted the Federal Gov-
ernment to reprosecute a defendant initially tried by a
State. 1 Annals of Cong. 753 (1789); J. Sigler, Double
Jeopardy: The Development of a Legal and Social Policy
30–31 (1969). But cf. ante, at 4–5. Nevermind that this
amendment failed; the Court has attributed to the Clause
the very meaning the First Congress refrained from
adopting.2
——————
2 The Court sees this history as poor evidence of congressional intent.
6 GAMBLE v. UNITED STATES
GINSBURG, J., dissenting
Second, early American courts regarded with disfavor
the prospect of successive prosecutions by the Federal and
State Governments. In Houston v. Moore, 5 Wheat. 1(1820), Justice Washington expressed concern that such
prosecutions would be “very much like oppression, if not
worse”; he noted that an acquittal or conviction by one
sovereign “might be pleaded in bar of the prosecution
before the other.” Id., at 23, 31. The Court today follows
Bartkus in distinguishing Justice Washington’s opinion as
addressing only the “strange” situation in which a State
has prosecuted an offense “against the United States.”
Ante, at 24; see Bartkus, 359 U. S., at 130. The distinction
is thin, given the encompassing language in Justice Wash-
ington’s opinion. Justice Story’s dissent, moreover, de-
clared successive prosecutions for the same offense contrary
to “the principles of the common law, and the genius of our
free government.” Houston, 5 Wheat., at 72.
Most of the early state decisions cited by the parties
regarded successive federal-state prosecutions as unac-
ceptable. See Bartkus, 359 U. S., at 158–159 (Black, J.,
dissenting). Only one court roundly endorsed a separate-
sovereigns theory. Hendrick v. Commonwealth, 32 Va.
707, 713 (1834). The Court reads the state-court opinions
as “distin[guishing] between believing successive prosecu-
tions by separate sovereigns unjust and holding them
unlawful.” Ante, at 21. I would not read the Double Jeop-
ardy Clause to tolerate “unjust” prosecutions and believe
early American courts would have questioned the Court’s
distinction. See State v. Brown, 2 N. C. 100, 101 (1794)
——————
See ante, at 4. On another day, the Court looked to the First Congress’
rejection of proposed amendments as instructive. See Cook v. Gralike,
531 U.S. 510, 521 (2001). Moreover, a “compelling” principle of statu-
tory interpretation is “the proposition that Congress does not intend
sub silentio to enact statutory language that it has earlier discarded in
favor of other language.” INS v. Cardoza-Fonseca, 480 U.S. 421, 442–
443 (1987) (internal quotation marks omitted).
Cite as: 587 U. S. ____ (2019) 7
GINSBURG, J., dissenting
(allowing successive prosecutions would be “against natu-
ral justice, and therefore I cannot believe it to be law”).
c
Finally, the Court has reasoned that the separate-
sovereigns doctrine is necessary to prevent either the
Federal Government or a State from encroaching on the
other’s law enforcement prerogatives. Without this doc-
trine, the Court has observed, the Federal Government, by
prosecuting first, could bar a State from pursuing more
serious charges for the same offense, Bartkus, 359 U. S., at
137; and conversely, a State, by prosecuting first, could
effectively nullify federal law, Abbate, 359 U. S., at 195.
This concern envisions federal and state prosecutors work-
ing at cross purposes, but cooperation between authorities
is the norm. See Bartkus, 359 U. S., at 123. And when
federal-state tension exists, successive prosecutions for the
federal and state offenses may escape double-jeopardy
blockage under the test prescribed in Blockburger v. United
States, 284 U.S. 299 (1932). Offenses are distinct, Block-
burger held, if “each . . . requires proof of a fact which the
other does not.” Id., at 304; see Amar, 95 Colum. L. Rev.,
at 45–46 (violation of federal civil rights law and state
assault law are different offenses).
II
The separate-sovereigns doctrine, I acknowledge, has
been embraced repeatedly by the Court. But “[s]tare
decisis is not an inexorable command.” Payne v. Tennes-
see, 501 U.S. 808, 828 (1991). Our adherence to precedent
is weakest in cases “concerning procedural rules that
implicate fundamental constitutional protections.” Alleyne
v. United States, 570 U.S. 99, 116, n. 5 (2013). Gamble’s
case fits that bill. I would lay the “separate-sovereigns”
rationale to rest for the aforesaid reasons and those stated
below.
8 GAMBLE v. UNITED STATES
GINSBURG, J., dissenting
A
First, Benton v. Maryland, 395 U.S. 784, which ren-
dered the double jeopardy safeguard applicable to the
States, left the separate-sovereigns doctrine the sort of
“legal last-man-standing for which we sometimes depart
from stare decisis.” Kimble v. Marvel Entertainment, LLC,
576 U.S. ___, ___ (2015) (slip op., at 11). In adopting and
cleaving to the doctrine, the Court stressed that originally,
the Clause restrained only federal, not state, action. E.g.,
Bartkus, 359 U. S., at 127; Lanza, 260 U. S., at 382; cf.
Abbate, 359 U. S., at 190.
Before incorporation, the separate-sovereigns doctrine
had a certain logic: Without a carve-out for successive
prosecutions by separate sovereigns, the Double Jeopardy
Clause would have barred the Federal Government from
prosecuting a defendant previously tried by a State, but
would not have prevented a State from prosecuting a
defendant previously tried by the Federal Government.
Incorporation changed this. Operative against the States
since 1969, when the Court decided Benton v. Maryland,
395 U.S. 784, the double jeopardy proscription now ap-
plies to the Federal Government and the States alike. The
remaining office of the separate-sovereigns doctrine, then,
is to enable federal and state prosecutors, proceeding one
after the other, to expose defendants to double jeopardy.
The separate-sovereigns doctrine’s persistence contrasts
with the fate of analogous dual-sovereignty doctrines
following application of the rights at issue to the States.
Prior to incorporation of the Fourth Amendment as a
restraint on state action, federal prosecutors were free to
use evidence obtained illegally by state or local officers,
then served up to federal officers on a “silver platter.” See
Elkins v. United States, 364 U.S. 206, 208–214 (1960);
Weeks v. United States, 232 U.S. 383, 398 (1914). Once
the Fourth Amendment applied to the States, abandon-
ment of this “silver platter doctrine” was impelled by
Cite as: 587 U. S. ____ (2019) 9
GINSBURG, J., dissenting
“principles of logic” and the reality that, from the perspec-
tive of the victim of an unreasonable search and seizure, it
mattered not at all “whether his constitutional right ha[d]
been invaded by a federal agent or by a state officer.”
Elkins, 364 U. S., at 208, 215. As observed by Justice
Harlan, Elkins’ abandonment of a separate-sovereigns
exception to the exclusionary rule was at odds with reten-
tion of the separate-sovereigns doctrine for double jeop-
ardy purposes in Abbate and Bartkus. See 364 U. S., at
252.
Similarly, before incorporation of the Fifth Amendment
privilege against self-incrimination, the Court held that
the privilege did not prevent state authorities from com-
pelling a defendant to provide testimony that could in-
criminate him or her in another jurisdiction. Knapp v.
Schweitzer, 357 U.S. 371, 375–381 (1958). After applica-
tion of the self-incrimination privilege to the States, the
Court concluded that its prior position was incompatible
with the “policies and purposes” of the privilege. Murphy
v. Waterfront Comm’n of N. Y. Harbor, 378 U.S. 52, 55, 77
(1964). No longer, the Court held, could a witness “ be
whipsawed into incriminating himself under both state
and federal law even though the constitutional privilege
against self-incrimination is applicable to each.” Id., at 55
(internal quotation marks omitted; emphasis added).
The Court regards incorporation as immaterial because
application of the Double Jeopardy Clause to the States
did not affect comprehension of the word “offence” to mean
the violation of one sovereign’s law. Ante, at 28. But the
Court attributed a separate-sovereigns meaning to “of-
fence” at least in part because the Double Jeopardy Clause
did not apply to the States. See supra, at 5. Incorporation
of the Clause should prompt the Court to consider the
protection against double jeopardy from the defendant’s
perspective and to ask why each of two governments
within the United States should be permitted to try a
10 GAMBLE v. UNITED STATES
GINSBURG, J., dissenting
defendant once for the same offense when neither could
try him or her twice.
B
The expansion of federal criminal law has exacerbated
the problems created by the separate-sovereigns doctrine.
Ill effects of the doctrine might once have been tempered
by the limited overlap between federal and state criminal
law. All Assets of G.P.S. Automotive, 66 F. 3d, at 498
(Calabresi, J., concurring). In the last half century, how-
ever, federal criminal law has been extended pervasively
into areas once left to the States. Guerra, The Myth of
Dual Sovereignty: Multijurisdictional Drug Law Enforce-
ment and Double Jeopardy, 73 N. C. L. Rev. 1159, 1165–
1192 (1995); Brief for Sen. Orrin Hatch as Amicus Curiae
8–14. This new “age of ‘cooperative federalism,’ [in which]
the Federal and State Governments are waging a united
front against many types of criminal activity,” Murphy,
378 U. S., at 55–56, provides new opportunities for federal
and state prosecutors to “join together to take a second
bite at the apple,” All Assets of G.P.S. Automotive, 66
F. 3d, at 498 (Calabresi, J., concurring).3 This situation
might be less troublesome if successive prosecutions oc-
curred only in “instances of peculiar enormity, or where
the public safety demanded extraordinary rigor.” Fox, 5
How., at 435. The run-of-the-mill felon-in-possession
charges Gamble encountered indicate that, in practice,
successive prosecutions are not limited to exceptional
circumstances.
——————
3 Bartkus v. Illinois, 359 U.S. 121 (1959), left open the prospect that
the double jeopardy ban might block a successive state prosecution that
was merely “a sham and a cover for a federal prosecution.” Id., at 123–
124. The Courts of Appeals have read this potential exception narrowly.
See, e.g., United States v. Figueroa-Soto, 938 F.2d 1015, 1019 (CA9
1991).
Cite as: 587 U. S. ____ (2019) 11
GINSBURG, J., dissenting
C
Against all this, there is little to be said for keeping the
separate-sovereigns doctrine. Gamble’s case “do[es] not
implicate the reliance interests of private parties.” Al-
leyne, 570 U. S., at 119 (SOTOMAYOR, J., concurring). The
closest thing to a reliance interest would be the interest
Federal and State Governments have in avoiding avulsive
changes that could complicate ongoing prosecutions. As
the Court correctly explains, however, overruling the
separate-sovereigns doctrine would not affect large num-
bers of cases. See ante, at 28–29. 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. See Poulin, Double Jeopardy Protection From
Successive Prosecution: A Proposed Approach, 92 Geo.
L. J. 1183, 1244–1245 (2004); Brief for Criminal Defense
Experts as Amici Curiae 5–11.4
Notably, the Federal Government has endeavored to
reduce the incidence of “same offense” prosecutions. Un-
der the Petite policy adopted by the Department of Jus-
tice,5 the Department will pursue a federal prosecution
——————
4 The Government implies there is tension between Gamble’s position
and Blockburger v. United States, 284 U.S. 299 (1932). Brief for
United States 18–20. But if courts can ascertain how laws enacted by
different Congresses fare under Blockburger, they can do the same for
laws enacted by Congress and a State, or by two States. But cf. Amar
& Marcus, Double Jeopardy Law After Rodney King, 95 Colum. L. Rev.
1, 39 (1995) (“Because different legislatures often do not work from the
same linguistic building blocks, they will not use uniform language to
describe an offence, even when each is indeed outlawing the same crime
with the same elements.”).
5 Formally the “Dual and Successive Prosecution Policy,” the policy is
popularly known by the name of the case in which this Court first took
note of it, Petite v. United States, 361 U.S. 529 (1960) (per curiam).
The policy was adopted “in direct response to” Bartkus and Abbate v.
United States, 359 U.S. 187 (1959). Rinaldi v. United States, 434 U.S.
12 GAMBLE v. UNITED STATES
GINSBURG, J., dissenting
“based on substantially the same act(s) or transaction(s)”
previously prosecuted in state court only if the first prose-
cution left a “substantial federal interest . . . demonstrably
unvindicated” and a Department senior official authorizes
the prosecution. Dept. of Justice, Justice Manual §9–
2.031(A) (rev. July 2009).
At oral argument, the Government estimated that it
authorizes only “about a hundred” Petite prosecutions per
year. Tr. of Oral Arg. 54. But see id., at 65–66 (referring
to the “few hundred successive prosecutions that [the
Government] bring[s] each year”). Some of these prosecu-
tions will not implicate double jeopardy, as the Petite
policy uses a same-conduct test that is broader than the
Blockburger same-elements test. And more than half the
States forbid successive prosecutions for all or some of-
fenses previously resolved on the merits by a federal or
state court. Brief for Criminal Defense Experts as Amici
Curiae 4–5, and n. 2 (collecting statutes); Brief for State of
Texas et al. as Amici Curiae 28–30, and nn. 6–15 (same).
In short, it is safe to predict that eliminating the separate-
sovereigns doctrine would spark no large disruption in
practice.
* * *
The separate-sovereigns doctrine, especially since
Bartkus and Abbate, has been subject to relentless criti-
cism by members of the bench, bar, and academy. Never-
theless, the Court reaffirms the doctrine, thereby dimin-
ishing the individual rights shielded by the Double
Jeopardy Clause. Different parts of the “WHOLE” United
States should not be positioned to prosecute a defendant a
second time for the same offense. I would reverse Gam-
ble’s federal conviction.
——————
22, 28 (1977) (per curiam).
Cite as: 587 U. S. ____ (2019) 1
GORSUCH, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 17–646
_________________
TERANCE MARTEZ GAMBLE, PETITIONER v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
[June 17, 2019]
JUSTICE GORSUCH, dissenting.
A free society does not allow its government to try the
same individual for the same crime until it’s happy with
the result. 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 en-
force that guarantee.
I
“Fear and abhorrence of governmental power to try
people twice for the same conduct is one of the oldest ideas
found in western civilization.”1 Throughout history, peo-
ple have worried about the vast disparity of power be-
——————
1 Bartkus v. Illinois, 359 U.S. 121, 151 (1959) (Black, J., dissenting).
2 GAMBLE v. UNITED STATES
GORSUCH, J., dissenting
tween governments and individuals, the capacity of the
state to bring charges repeatedly until it wins the result it
wants, and what little would be left of human liberty if
that power remained unchecked. To address the problem,
the law in ancient Athens held that “[a] man could not be
tried twice for the same offense.”2 The Roman Republic
and Empire incorporated a form of double jeopardy protec-
tion in their laws.3 The Old Testament and later church
teachings endorsed the bar against double jeopardy too.4
And from the earliest days of the common law, courts
recognized that to “punish a man twice over for one of-
fence” would be deeply unjust.5
The rule against double jeopardy was firmly entrenched
in both the American colonies and England at the time of
our Revolution.6 And the Fifth Amendment, which prohib-
its placing a defendant “twice . . . in jeopardy of life or
limb” for “the same offence” sought to carry the traditional
common law rule into our Constitution.7 As Joseph Story
put it, the Constitution’s prohibition against double jeop-
ardy grew from a “great privilege secured by the common
law” and meant “that a party shall not be tried a second
time for the same offence, after he has once been convicted,
——————
2 R.
Bonner, Lawyers and Litigants in Ancient Athens 195 (1927).
3 J.
Sigler, Double Jeopardy: The Development of a Legal and Social
Policy 2–3 (1969); Digest of Justinian: Digest 48.2.7.2, translated in 11
S. Scott, The Civil Law 17 (1932).
4 See Bartkus, 359 U. S., at 152, n. 4 (Black, J., dissenting); Z. Brooke,
The English Church and the Papacy 204–205, n. 1 (1931).
5 1 F. Pollock & F. Maitland, The History of English Law 448 (2d ed.
1898).
6 See, e.g., The Massachusetts Body of Liberties of 1641, cl. 42, in The
Colonial Laws of Massachusetts 42–43 (W. Whitmore ed. 1889); 4 W.
Blackstone, Commentaries on the Laws of England 335–336 (5th ed.
1773) (Blackstone, Commentaries); 2 W. Hawkins, Pleas of the Crown
368 (1762) (Hawkins).
7 Ex parte Lange, 18 Wall. 163, 170 (1874). See also Benton v. Mary-
land, 395 U.S. 784, 795–796 (1969); F. Wharton, Criminal Law of the
United States 147 (1846).
Cite as: 587 U. S. ____ (2019) 3
GORSUCH, J., dissenting
or acquitted of the offence charged, by the verdict of a jury,
and judgment has passed thereon for or against him.”8
Given all this, it might seem that Mr. Gamble should
win this case handily. Alabama prosecuted him for violat-
ing a state law that “prohibits a convicted felon from
possessing a pistol” and sentenced him to a year in prison.9
But then the federal government, apparently displeased
with the sentence, charged Mr. Gamble under 18 U.S. C.
§922(g)(1) with being a felon in possession of a firearm
based on the same facts that gave rise to the state prose-
cution. Ultimately, a federal court sentenced him to 46
months in prison and three years of supervised release.
Most any ordinary speaker of English would say that Mr.
Gamble was tried twice for “the same offence,” precisely
what the Fifth Amendment prohibits. Tellingly, no one
before us doubts that if either the federal government or
Alabama had prosecuted Mr. Gamble twice on these facts
and in this manner, it surely would have violated the
Constitution.
So how does the government manage to evade the Fifth
Amendment’s seemingly plain command? On the govern-
ment’s account, the fact that federal and state authorities
split up the prosecutions makes all the difference. Though
the Double Jeopardy Clause doesn’t say anything about
allowing “separate sovereigns” to do sequentially what
neither may do separately, the government assures us the
Fifth Amendment’s phrase “same offence” does this work.
Adopting the government’s argument, the Court supplies
the following syllogism: “[A]n ‘offence’ is defined by a law,
and each law is defined by a sovereign. So where there
are two sovereigns, there are two laws, and two ‘offences.’ ”
——————
83 J. Story, Commentaries on the Constitution of the United States
§1781, p. 659 (1833).
9 Ex parte Taylor, 636 So. 2d 1246 (Ala. 1993); see Ala. Code §§13A–
11–70(2), 13A–11–72(a) (2015).
4 GAMBLE v. UNITED STATES
GORSUCH, J., dissenting
Ante, at 3–4.
But the major premise of this argument—that “where
there are two laws there are ‘two offenses’ ”—is mistaken.
We know that the Constitution is not so easily evaded and
that two statutes can punish the same offense.10 The
framers understood the term “offence” to mean a “trans-
gression.”11 And they understood that the same trans-
gression might be punished by two pieces of positive law:
After all, constitutional protections were not meant to be
flimsy things but to embody “principles that are perma-
nent, uniform, and universal.”12 As this Court explained
long ago in Blockburger v. United States, “where the same
act or transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine
whether there are two offenses or only one, is whether
each provision requires proof of a fact which the other does
not.”13 So if two laws demand proof of the same facts to
secure a conviction, they constitute a single offense under
our Constitution and a second trial is forbidden. And by
everyone’s admission, that is exactly what we have here:
The statute under which the federal government pro-
ceeded required it to prove no facts beyond those Alabama
needed to prove under state law to win its conviction; the
two prosecutions were for the same offense.
That leaves the government and the Court to rest on the
fact that distinct governmental entities, federal and state,
enacted these identical laws. This, we are told, is enough
to transform what everyone agrees would otherwise be the
same offense into two different offenses. But where is that
distinction to be found in the Constitution’s text or origi-
——————
10 Whalenv. United States, 445 U.S. 684, 691–692 (1980).
11 Dictionarium Britannicum (N. Bailey ed. 1730); see also N. Web-
ster, An American Dictionary of the English Language (1828) (defining
an “offense” as including “[a]ny transgression of law, divine or human”).
12 4 Blackstone, Commentaries 3.
13 284 U.S. 299, 304 (1932).
Cite as: 587 U. S. ____ (2019) 5
GORSUCH, J., dissenting
nal public understanding? We know that the framers
didn’t conceive of the term “same offence” in some tech-
nical way as referring only to the same statute. And if
double jeopardy prevents one government from prosecut-
ing a defendant multiple times for the same offense under
the banner of separate statutory labels, on what account
can it make a difference when many governments collec-
tively seek to do the same thing?
The government identifies no evidence suggesting that
the framers understood the term “same offence” to bear
such a lawyerly sovereign-specific meaning. Meanwhile,
Blackstone’s Commentaries explained how “Roman law,”
“Athens,” “the Jewish republic,” and “English Law” ad-
dressed the singular “offence of homicide,” and how the
Roman, Gothic, and ancient Saxon law approached the
singular “offence of arson.”14 Other treatises of the period
contain similar taxonomies of “offences” that are not
sovereign-specific.15 Members of the Continental Con-
gress, too, used the word “offence” in this same way. In
1786, a congressional committee endorsed federal control
over import duties because otherwise “thirteen separate
authorities” might “ordain various penalties for the same
offence.”16 In 1778, the Continental Congress passed a
resolution declaring that a person should not be tried in
state court “for the same offense, for which he had previ-
ous thereto been tried by a Court Martial.”17 And in 1785,
the Continental Congress considered an ordinance declar-
ing that a defendant could “plead a formal Acquital on a
Trial” in a maritime court “for the same supposed Offences,
——————
14 4 Blackstone, Commentaries 176–187, 222.
15 See, e.g., 2 J. Bishop, Commentaries on the Criminal Law §§90–120
(5th ed. 1872) (discussing the singular offense of “burglary” by reference
to the “common law,” English law, and the laws of multiple States).
16 30 Journals of the Continental Congress 440 (J. Fitzpatrick ed.
1934).
17 10 id., at 72 (W. Ford ed. 1908).
6 GAMBLE v. UNITED STATES
GORSUCH, J., dissenting
in a similar Court in one of the other United States.”18 In
all of these examples, early legislators—including many of
the same people who would vote to add the Fifth Amend-
ment to the Bill of Rights just a few years later—
recognized that transgressions of state and federal law
could constitute the “same offence.”
The history of the Double Jeopardy Clause itself sup-
plies more evidence yet. The original draft prohibited
“more than one trial or one punishment for the same
offence.”19 One representative then proposed adding the
words “by any law of the United States” after “same of-
fence.”20 That proposal clearly would have codified the
government’s sovereign-specific view of the Clause’s oper-
ation. Yet, Congress proceeded to reject it.
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.
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?
——————
18 29 id., at 803 (J. Fitzpatrick ed. 1933).
19 1 Annals of Cong. 753 (1789).
20 Ibid.
Cite as: 587 U. S. ____ (2019) 7
GORSUCH, J., dissenting
II
Without meaningful support in the text of the Double
Jeopardy Clause, the government insists that the separate
sovereigns exception is at least compelled by the structure
of our Constitution. On its view, adopted by the Court
today, allowing the federal and state governments to
punish the same defendant for the same conduct “honors
the substantive differences between the interests that two
sovereigns can have” in our federal system. Ante, at 5.
But this argument errs from the outset. The Court
seems to assume that sovereignty in this country belongs
to the state and federal governments, much as it once
belonged to the King of England. But as Chief Justice
Marshall explained, “[t]he government of the Union . . . is
emphatically, and truly, a government of the people,” and
all sovereignty “emanates from them.”21 Alexander Ham-
ilton put the point this way: “[T]he national and State
systems are to be regarded” not as different sovereigns
foreign to one another but “as ONE WHOLE.”22 Under
our Constitution, the federal and state governments are
but two expressions of a single and sovereign people.
This principle resonates throughout our history and law.
State courts that refused to entertain federal causes of
action found little sympathy when attempting the very
separate sovereigns theory underlying today’s decision.23
In time, too, it became clear that federal courts may decide
state-law issues, and state courts may decide federal
questions.24 Even in the criminal context, this Court has
upheld removal of some state criminal actions to federal
court.25 And any remaining doubt about whether the
——————
21 McCulloch v. Maryland, 4 Wheat. 316, 404–405 (1819).
22 The Federalist No. 82, p. 494 (C. Rossiter ed. 1961).
23 See Testa v. Katt, 330 U.S. 386 (1947).
24 Claflin v. Houseman, 93 U.S. 130 (1876).
25 See Tennessee v. Davis, 100 U.S. 257 (1880).
8 GAMBLE v. UNITED STATES
GORSUCH, J., dissenting
States and the federal government are truly separate
sovereigns was ultimately “resolved by war.”26
From its mistaken premise, the Court continues to the
flawed conclusion that the federal and state governments
can successively prosecute the same person for the same
offense. This turns the point of our federal experiment on
its head. When the “ONE WHOLE” people of the United
States assigned different aspects of their sovereign power
to the federal and state governments, they sought not to
multiply governmental power but to limit it. As this Court
has explained, “[b]y denying any one government complete
jurisdiction over all the concerns of public life, federalism
protects the liberty of the individual from arbitrary power.”27
Yet today’s Court invokes federalism not to protect indi-
vidual liberty but to threaten it, allowing two governments
to achieve together an objective denied to each. The Court
brushes this concern aside because “the powers of the
Federal Government and the States often overlap,” which
“often results in two layers of regulation.” Ante, at 10.
But the Court’s examples—taxation, alcohol, and mari-
——————
26 Testa,330 U. S., at 390. The Court tries to make the most of
McCulloch, pointing out that Chief Justice Marshall distinguished
between “ ‘the people of a State’ ” and “ ‘the people of all the States.’ ”
Ante, at 9. But of course our federal republic is composed of separate
governments. My point is that the federal and state governments
ultimately derive their sovereignty from one and the same source; they
are not truly “separate” in the manner of, say, the governments of
England and Portugal. The American people “ ‘split the atom of sover-
eignty,’ ” ante, at 9, to set two levels of government against each other,
not to set both against the people. McCulloch is consistent with that
understanding. In holding that the States could not tax the national
bank, McCulloch sought to ensure that the national and state govern-
ments remained each in its proper sphere; it did not hold that the two
governments could work in concert to abridge the people’s liberty in a
way that neither could on its own.
27 Bond v. United States, 564 U.S. 211, 222 (2011); see also New York
v. United States, 505 U.S. 144, 181 (1992); Alden v. Maine, 527 U.S.
706, 758 (1999); The Federalist No. 51.
Cite as: 587 U. S. ____ (2019) 9
GORSUCH, J., dissenting
juana—involve areas that the federal and state governments
each may regulate separately under the Constitution as
interpreted by this Court. That is miles away from the
separate sovereigns exception, which allows the federal
and state governments to accomplish together what nei-
ther may do separately consistent with the Constitution’s
commands. As Justice Black understood, the Court’s view
today “misuse[s] and desecrat[es] . . . the concept” of fed-
eralism.28 For “it is just as much an affront to . . . human
freedom for a man to be punished twice for the same
offense” by two parts of the people’s government “as it
would be for one . . . to throw him in prison twice for the
offense.”29
III
A
If the Constitution’s text and structure do not supply
persuasive support for the government’s position, what
about a more thorough exploration of the common law
from which the Fifth Amendment was drawn?
By 1791 when the Fifth Amendment was adopted, an
array of common law authorities suggested that a prosecu-
tion in any court, so long as the court had jurisdiction over
the offense, was enough to bar future reprosecution in
another court. Blackstone, for example, reported that an
acquittal “before any court having competent jurisdiction
of the offence” could be pleaded “in bar of any subsequent
accusation for the same crime.”30 For support, Blackstone
pointed to Beak v. Tyrhwhit,31 a 1688 case in which the
reporter described an acquittal in a foreign country fol-
lowed by an attempted second prosecution in England that
the court held impermissible. Another treatise by William
——————
28 Bartkus, 359 U. S., at 155 (dissenting opinion).
29 Abbate v. United States, 359 U.S. 187, 203 (1959) (same).
30 4 Blackstone, Commentaries 335, and n. j.
31 3 Mod. 194, 87 Eng. Rep. 124 (K. B.).
10 GAMBLE v. UNITED STATES
GORSUCH, J., dissenting
Hawkins likewise considered it “settled” as early as 1716
“[t]hat an Acquittal in any Court whatsoever, which has a
Jurisdiction of the Cause, is as good a Bar of any subse-
quent Prosecution for the same Crime.”32
What these authorities suggest many more confirm.
Henry Bathurst’s 1761 treatise on evidence taught that “a
final Determination in a Court having competent Jurisdic-
tion is conclusive in all Courts of concurrent Jurisdic-
tion.”33 Nor was this merely a rule about the competency
of evidence, as the next sentence reveals: “If A. having
killed a Person in Spain was there prosecuted, tried, and
acquitted, and afterwards was indicted here [in England],
he might plead the Acquittal in Spain in Bar.”34 Francis
Buller’s 1772 treatise repeated the same rule, articulating
it the same way.35 And to illustrate their point, both
treatises cited the 1678 English case of King v.
Hutchinson. Although no surviving written report of
Hutchinson remains, several early common law cases—
including Beak v. Thyrwhit,36 Burrows v. Jemino,37 and
King v. Roche38—described its holding in exactly the same
way the treatise writers did: All agreed that it barred the
retrial in England of a defendant previously tried for
murder in Spain or Portugal.
When they envisioned the relationship between the
national government and the States under the new Con-
stitution, the framers sometimes referenced by way of
comparison the relationship between Wales, Scotland, and
——————
32 2 Hawkins §10, at 372 (emphasis added).
33 H. Bathurst, Theory of Evidence 39.
34 Ibid.
35 F. Buller, An Introduction to the Law Relative to Trials at Nisi
Prius 241.
36 3 Mod. 194, 87 Eng. Rep. 124, sub nom. Beake v. Tyrrell, 1 Show. K.
B. 6, 89 Eng. Rep. 411, sub nom. Beake v. Tirrell, Comb. 120, 90 Eng.
Rep. 379.
37 2 Str. 733, 93 Eng. Rep. 815 (K. B. 1726)
38 1 Leach 134, 168 Eng. Rep. 169 (K. B. 1775).
Cite as: 587 U. S. ____ (2019) 11
GORSUCH, J., dissenting
England.39 And prosecutions in one of these places pretty
plainly barred subsequent prosecutions for the same
offense in the others. So, for example, treatises explained
that “an Acquittal of Murder at a Grand Sessions in
Wales, may be pleaded to an Indictment for the same
Murder in England. For the Rule is, That a Man’s Life
shall not be brought into Danger for the same Offence
more than once.”40 Indeed, when an English county in-
dicted a defendant “for a murder committed . . . in Wales,”
it was barred from proceeding when the court learned that
the defendant had already been tried and acquitted “of the
same offence” in Wales.41
Against this uniform body of common law weighs Gage
v. Bulkeley—a civil, not criminal, case from 1744 that
suggested Hutchinson had held only that the English
courts lacked jurisdiction to try a defendant for an offense
committed in Portugal. Because “the murder was commit-
ted in Portugal,” Gage argued, “the Court of King’s Bench
could not indict him, and there was no method of trying
him but upon a special commission.”42 But no one else—
not the treatise writers or the other English cases that
favorably cited Hutchinson—adopted Gage’s restrictive
reading of that precedent.
In the end, then, it’s hard to see how anyone consulting
the common law in 1791 could have avoided this conclu-
sion: While the issue may not have arisen often, the great
weight of authority indicated that successive prosecutions
by different sovereigns—even sovereigns as foreign to each
——————
39 See, e.g., A. Amar, America’s Constitution: A Biography 45 (2005);
The Federalist No. 5, pp. 50–51; The Federalist No. 17; Jay, An Address
to the People of the State of New York, in Pamphlets on the Constitu-
tion of the United States 84 (P. Ford ed. 1788).
40 2 Hawkins §10, at 372.
41 King v. Thomas, 1 Lev. 118, 83 Eng. Rep. 326 (K. B. 1664).
42 Gage v. Bulkeley, Ridg. t. H. 263, 270–271, 27 Eng. Rep. 824, 827.
(1794).
12 GAMBLE v. UNITED STATES
GORSUCH, J., dissenting
other as England and Portugal—were out of bounds. And
anyone familiar with the American federal system likely
would have thought the rule applied with even greater
force to successive prosecutions by the United States and a
constituent State, given that both governments derive
their sovereignty from the American people.
Unable to summon any useful preratification common
law sources of its own, the government is left to nitpick
those that undermine its position. For example, the Court
dismisses Beak because “Hutchinson is discussed only in
the defendant’s argument in that case, not the court’s
response.” Ante, at 16. But the Beak court did not reject
the Hutchinson argument, and counsel’s use of the case
sheds light on how 17th- and 18th-century lawyers under-
stood the double jeopardy bar. The Court likewise derides
King v. Thomas as “totally irrelevant” because in the 17th
century, Wales and England shared the same laws. But
our federal and state governments share the same funda-
mental law and source of authority, and the Wales exam-
ple is at least somewhat analogous to our federal system.43
Finally, the Court complains that Roche’s footnote citing
Hutchinson was added only in 1800, after the Fifth
Amendment’s ratification. Ante, at 16. But that is hardly
a point for the government, because even so it provides an
example of a later reporter attempting to describe the pre-
existing state of the law; nor, as it turns out, was the
footnote even essential to the Roche court’s original analy-
sis and conclusion reached in 1775, well before the Fifth
Amendment’s ratification.44 And among all these com-
——————
43 Indeed, though England ruled Wales at the time, a contemporane-
ous lawyer might have thought that Wales’ authority to prosecute a
defendant derived at least in part from its earlier status as “an absolute
and undependent Kingdom” rather than purely from authority delegated
by England. 1 Keb. 663, 83 Eng. Rep. 1172 (K. B. 1663); see United
States v. Lara, 541 U.S. 193, 210 (2004).
44 Indeed, everything that matters was contained in the 1775 version
Cite as: 587 U. S. ____ (2019) 13
GORSUCH, J., dissenting
plaints, we should not lose the forest for the trees. The
Court’s attempts to explain away so many uncomfortable
authorities are lengthy, detailed, even herculean. But in
the end, neither it nor the government has mustered a
single preratification common law authority approving a
case of successive prosecutions by separate sovereigns for
the same offense.
B
What we know about the common law before the Fifth
Amendment’s ratification in 1791 finds further confirma-
tion in how later legal thinkers in both England and
America described the rule they had inherited.
Start with England. As it turns out, “it would have been
difficult to have made more than the most cursory exami-
nation of nineteenth century or later English treatises or
digests without encountering” the Hutchinson rule.45 In
1802, a British treatise explained that “an acquittal on a
criminal charge in a foreign country may be pleaded in bar
of an indictment for the same offence in England.”46 Three
——————
of the Roche case report. Roche was indicted in England for a murder
committed in South Africa. “To this indictment Captain Roche pleaded
Autrefois acquit.” Roche, 1 Leach 134, 168 Eng. Rep. 169. In response,
the prosecution asked the court to charge the jury both with “this issue
[the plea of autrefois acquit], and that of Not guilty.” Ibid. The court
rejected that proposal, reasoning that “if the first finding was for the
prisoner, they could not go to the second, because that finding would be
a bar.” Ibid. Far from saying “absolutely nothing” about double jeop-
ardy, ante, at 16, Roche is a serious problem for the government be-
cause it explicitly recognizes that a successful plea of autrefois acquit,
even one based on a foreign conviction, would bar a prosecution in
England. But the Court ignores this, focusing instead on the missing
explanatory citation to Hutchinson that was, in any event, added
shortly thereafter.
45 Grant, Successive Prosecutions by State and Nation: Common Law
and British Empire Comparisons, 4 UCLA L. Rev. 1, 9–11 (1956)
(footnotes omitted).
46 2 L. MacNally, Rules of Evidence on Pleas of the Crown 428 (1802);
14 GAMBLE v. UNITED STATES
GORSUCH, J., dissenting
decades later, another treatise observed (citing
Hutchinson) that “[a]n acquittal by a competent jurisdic-
tion abroad is a bar to an indictment for the same offence
before any other tribunal.”47 In 1846, the Scottish High
Court of Justiciary declared that “[i]f a man has been tried
for theft in England, we would not try him again here.”48
Twentieth century treatises recited the same rule.49 In
1931, the American Law Institute stated that “[i]f a person
has been acquitted in a court of competent jurisdiction for
an offense in another country he may not be tried for the
same offense again in an English Court.”50 And in 1971,
an English judge explained that the bar on “double jeop-
ardy . . . has always applied whether the previous convic-
tion or acquittal based on the same facts was by an Eng-
lish court or by a foreign court.”51 The Court today asks us
to assume that all these legal authorities misunderstood
the common law’s ancient rule. I would not.
——————
see also 1 T. Starkie, Criminal Pleading 300–301, n. h (1814); 1 J.
Chitty, Criminal Law 458 (2d ed. 1816).
47 J. Archbold, Pleading and Evidence in Criminal Cases 89 (5th ed.
1834). Many more authorities are to the same effect. See, e.g., 1 Encyc.
of the Laws of England, Autrefois aquit, 424–425 (A. Renton ed. 1897);
2 J. Gabbett, Criminal Law 334 (1843); 2 E. Deacon, Digest of the
Criminal Law of England 931 (1831); R. Matthews, Digest of Criminal
Law 26 (1833); H. Nelson, Private International Law 368, n. y (1889); 1
W. Russell, Crimes and Indictable Misdemeanors 471–472 (2d ed.
1826); H. Woolrych, Criminal Law 129 (1862); 2 M. Hale, Pleas of the
Crown 255 (1st Am. ed., S. Emlyn ed. 1847); H. Smith, Roscoe on the
Law of Evidence 199 (8th ed. 1874).
48 Her Majesty’s Advocate v. MacGregor, (1846) Ark. 49, 60.
49 A. Gibb, International Law of Jurisdiction in England and Scotland
285–286 (1926); A. Gibson & A. Weldon, Criminal and Magisterial Law
225 (7th ed. 1919); S. Harris, Criminal Law 377 (9th ed. 1901); C.
Kenny, Outlines of Criminal Law 469 (10th ed. 1920); H. Cohen, Roscoe
on the Law of Evidence 172 (13th ed. 1908).
50 ALI, Administration of Criminal Law §16, p. 129 (Proposed Final
Draft, Mar. 18, 1935).
51 Regina v. Treacy, [1971] A. C. 537, 562, 2 W. L. R. 112, 125 (opinion
of Diplock, L. J.) (citing Roche, 1 Leach 134, 168 Eng. Rep. 169).
Cite as: 587 U. S. ____ (2019) 15
GORSUCH, J., dissenting
Even more pertinently, consider how 18th-century
Americans understood the double jeopardy provision they
had adopted. The legal treatises an American lawyer
practicing between the founding and the Civil War might
have consulted uniformly recited the Hutchinson rule as
black letter law. Chancellor Kent wrote that “the plea of
autrefois acquit, resting on a prosecution [in] any civilized
state, would be a good plea in any other civilized state.”52
Thomas Sergeant explained that “[w]here the jurisdiction
of the United States court and of a state Court is concur-
rent, the sentence of either court, whether of conviction or
acquittal, may be pleaded in bar to a prosecution in the
other.”53 William Rawle echoed that conclusion in virtually
identical words.54 Indeed, one early commentator wrote
that a “principal reason” for the Double Jeopardy Clause
was to prevent successive state and federal prosecutions,
which he considered to be against “[n]atural justice.”55
Nor did these treatises purport to invent a new rule; they
claimed only to recite the traditional one.
This Court’s early decisions reflected the same principle.
In Houston v. Moore, a Pennsylvania court-martial tried a
member of the state militia for desertion under an “act of
the legislature of Pennsylvania.”56 The defendant objected
that the state court-martial lacked jurisdiction because
federal law criminalized the same conduct and prosecuting
him in the state court could thus expose him to double
jeopardy. In an opinion by Justice Washington, the Court
disagreed and allowed the prosecution, but reassured the
defendant that “if the jurisdiction of the two Courts be
concurrent, the sentence of either Court, either of convic-
——————
52 1 Commentaries on American Law 176 (1826).
53 Constitutional Law 278 (1830).
54 View of the Constitution 191 (1825).
55 J. Bayard, Brief Exposition of the Constitution of the United States
150–151 (1845).
56 5 Wheat. 1, 12 (1820).
16 GAMBLE v. UNITED STATES
GORSUCH, J., dissenting
tion or acquittal, might be [later] pleaded in bar of the
prosecution before the other.”57 In dissent, Justice Story
thought the state court lacked jurisdiction because other-
wise the defendant would be “liable to be twice tried and
punished for the same offence, against the manifest intent
of the act of Congress, the principles of the common law,
and the genius of our free government.”58 But notice the
point of agreement between majority and dissent: Both
acknowledged that a second prosecution for the same
underlying offense would be prohibited even if brought by
a separate government.59
Another case decided the same year also reflected the
Hutchinson rule. In United States v. Furlong, one British
subject killed another on the high seas, and the killer was
indicted in an American federal court for robbery and
murder. This Court unanimously held that “[r]obbery on
the seas is considered as an offence within the criminal
jurisdiction of all nations” that can therefore be “punished
by all,” and there can be “no doubt that the plea of autre
fois acquit [double jeopardy] would be good in any civilized
State, though resting on a prosecution instituted in the
Courts of any other civilized State.”60
——————
57 Id.,at 31.
58 Id.,at 72.
59 The Court insists that Houston involved an unusual state statute
that “imposed state sanctions for violation of a federal criminal law.”
Ante, at 23. But so what? Everyone involved in Houston agreed that
the defendant had been tried by a Pennsylvania court, under a Penn-
sylvania statute, passed by the Pennsylvania Legislature. And though
there were separate sovereigns with separate laws, everyone agreed
there was only one offense.
60 5 Wheat. 184, 197 (1820). To be sure, Furlong proceeded to indi-
cate that an acquittal for murder in an American court would not have
prohibited a later prosecution in a British court in this case. But that
was only because the British courts would not have recognized the
jurisdiction of an American court to try a murder committed by a
British subject on the high seas. Furlong’s discussion is therefore
perfectly consistent with the Hutchinson principle—a rule that applied
Cite as: 587 U. S. ____ (2019) 17
GORSUCH, J., dissenting
A number of early state cases followed the same rule.
Indeed, the Court today acknowledges that Massachu-
setts, Michigan, and Vermont all followed Hutchinson.
Ante, at 22.61 The Court agrees that South Carolina did
too,62 but it believes that a later South Carolina case
might have deviated from the Hutchinson rule. That
decision, however, contains at best only “an inconclusive
discussion coming from a State whose highest court had
previously stated unequivocally that a bar against double
prosecutions would exist.”63
In the face of so much contrary authority, the Court
winds up leaning heavily on a single 1794 North Carolina
Superior Court decision, State v. Brown. But the Court’s
choice here is revealing. True, Brown said that a verdict
in North Carolina would not be “pleadable in bar to an
indictment preferred against [the defendant] in the Terri-
tory South of the Ohio.”64 But the Court leaves out what
happened next. Brown went on to reject concurrent juris-
diction because trying the defendant “according to the
several laws of each State” could result in him being
“cropped in one, branded and whipped in another, impris-
oned in a third, and hanged in a fourth; and all for one and
the same offence.”65 The North Carolina court viewed that
result as “against natural justice” and “therefore [could]
not believe it to be law.”66 So it is that the principal sup-
port the Court cites for its position is a state case that both
——————
only when both courts had “competent jurisdiction of the offence” and
could actually place the defendant in jeopardy. See 4 Blackstone,
Commentaries 365.
61 Citing Commonwealth v. Fuller, 49 Mass. 313, 318 (1844); Harlan
v. People, 1 Doug. 207, 212 (Mich. 1843); State v. Randall, 2 Aik. 89 (Vt.
1827).
62 State v. Antonio, 7 S. C. L. 776 (1816).
63 Bartkus, 359 U. S., at 158–159 (Black, J., dissenting).
64 2 N. C. 100, 101.
65 Ibid. (emphasis added).
66 Ibid.
18 GAMBLE v. UNITED STATES
GORSUCH, J., dissenting
(1) regarded transgressions of the laws of a State and a
U. S. territory as the “same offence,” and (2) expressed
aversion at the thought of both jurisdictions punishing the
defendant for that singular offense.67
IV
With the text, principles of federalism, and history now
arrayed against it, the government is left to suggest that
we should retain the separate sovereigns exception under
the doctrine of stare decisis. But if that’s the real basis for
today’s result, let’s at least acknowledge this: By all ap-
pearances, the Constitution as originally adopted and
understood did not allow successive state and federal
prosecutions for the same offense, yet the government
wants this Court to tolerate the practice anyway.
Stare decisis has many virtues, but when it comes to
enforcing the Constitution this Court must take (and
always has taken) special care in the doctrine’s applica-
tion. After all, judges swear to protect and defend the
Constitution, not to protect what it prohibits. And while
we rightly pay heed to the considered views of those who
have come before us, especially in close cases, stare decisis
isn’t supposed to be “the art of being methodically ignorant
of what everyone knows.”68 Indeed, blind obedience to
stare decisis would leave this Court still abiding grotesque
errors like Dred Scott v. Sandford,69 Plessy v. Ferguson,70
——————
67 Perhaps the only early state-law discussion that truly supports the
Court’s position is dicta in an 1834 Virginia decision. Hendrick v.
Commonwealth, 32 Va. 707. Yet even that support proves threadbare
in the end, given that “the highest court of the same State later ex-
pressed the view that such double trials would virtually never occur in
our country.” Bartkus, 359 U. S., at 159 (Black, J., dissenting) (citing
Jett v. Commonwealth, 59 Va. 933, 947, 959 (1867)).
68 R. Cross & J. Harris, Precedent in English Law, intro. comment
(4th ed. 1991) (attributing the aphorism to Jeremy Bentham).
69 19 How. 393 (1857).
70 163 U.S. 537 (1896).
Cite as: 587 U. S. ____ (2019) 19
GORSUCH, J., dissenting
and Korematsu v. United States.71 As Justice Brandeis
explained, “in cases involving the Federal Constitution,
where correction through legislative action is practically
impossible, this Court has often overruled its earlier deci-
sions. The Court bows to the lessons of experience and the
force of better reasoning, recognizing that the process of
trial and error, so fruitful in the physical sciences, is ap-
propriate also in the judicial function.”72
For all these reasons, while stare decisis warrants re-
spect, it has never been “ ‘an inexorable command,’ ”73 and
it is “at its weakest when we interpret the Constitution.”74
In deciding whether one of our cases should be retained or
overruled, this Court has traditionally considered “the
quality of the decision’s reasoning; its consistency with
related decisions; legal developments since the decision;
and reliance on the decision.”75 Each of these factors, I
believe, suggests we should reject the separate sovereigns
exception.
Take the “quality of [the] reasoning.”76 The first cases to
suggest that successive prosecutions by state and federal
authorities might be permissible did not seek to address
the original meaning of the word “offence,” the troubling
federalism implications of the exception, or the relevant
historical sources. Between 1847 and 1850, the Court
decided a pair of cases, United States v. Marigold77 and
Fox v. Ohio.78 While addressing other matters in those
decisions, the Court offered passing approval to the possi-
——————
71 323 U.S. 214 (1944).
72 Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406–408 (1932)
(dissenting opinion) (footnotes omitted).
73 Pearson v. Callahan, 555 U.S. 223, 233 (2009).
74 Agostini v. Felton, 521 U.S. 203, 235 (1997).
75 Franchise Tax Bd. of Cal. v. Hyatt, ante, at ___ (slip op., at 17).
76 Janus v. State, County, and Municipal Employees, 585 U.S. ___,
___ (2018) (slip op., at 35).
77 9 How. 560 (1850).
78 5 How. 410 (1847).
20 GAMBLE v. UNITED STATES
GORSUCH, J., dissenting
bility of successive state and federal prosecutions, but did
so without analysis and without actually upholding a
successive conviction. Indeed, in place of a careful consti-
tutional analysis, the Fox Court merely offered its judg-
ment that “the benignant spirit” of prosecutors could be
relied on to protect individuals from too many repetitive
prosecutions.79 We do not normally give precedential
effect to such stray commentary.
Perhaps the first real roots of the separate sovereigns
exception can be traced to this Court’s 1852 decision in
Moore v. Illinois.80 As it did five years later and more
notoriously in Dred Scott,81 the Court in Moore did vio-
lence to the Constitution in the name of protecting slavery
and slaveowners. In Dred Scott the Court held that the
Due Process Clause prevented Congress from prohibiting
slavery in the territories, though of course the Clause did
nothing of the sort.82 And in Moore the Court upheld a
state fugitive slave law that it judged important because
the States supposedly needed “to protect themselves
against the influx either of liberated or fugitive slaves, and
to repel from their soil a population likely to become bur-
densome and injurious, either as paupers or criminals.”83
The defendant, who had harbored a fugitive slave, objected
that upholding the state law could potentially expose him
to double prosecutions by the state and federal govern-
ments. The Court rejected that argument, reasoning
simply that such double punishment could be consistent
with the Constitution if the defendant had violated both
state and federal law.84 Yet notably, even here, the Court
did not actually approve a successive prosecution.
——————
79 Id., at 435.
80 14 How. 13.
81 19 How. 393.
82 Id., at 450.
83 Moore, 14 How., at 18.
84 Id., at 16.
Cite as: 587 U. S. ____ (2019) 21
GORSUCH, J., dissenting
Nor did the trajectory of the separate sovereigns excep-
tion improve much from there. The first time the Court
actually approved an “instance of double prosecution [and]
failed to find some remedy . . . to avoid it” didn’t arrive
until 1922.85 In that case, United States v. Lanza,86 the
federal government prosecuted the defendants for manu-
facturing, transporting, and possessing alcohol in violation
of the National Prohibition Act. The defendants argued
that they had already been prosecuted by the State of
Washington for the same offense. But, notably, the de-
fendants did not directly question the permissibility of
successive prosecutions for the same offense under state
and federal law. Instead, the defendants argued that both
of the laws under which they were punished really derived
from the “same sovereign:” the national government, by
way of the Eighteenth Amendment that authorized Prohi-
bition. After rejecting that argument as an “erroneous
view of the matter,” the Court proceeded on, perhaps
unnecessarily, to offer its view that “an act denounced as a
crime by both national and state sovereignties is an of-
fense against the peace and dignity of both and may be
punished by each.”87 Given that the Court was not asked
directly to consider the propriety of successive prosecu-
tions under separate state and federal laws for the same
offense, it is perhaps unsurprising the Court did not con-
sult the original meaning of the Double Jeopardy Clause
or consult virtually any of the relevant historical sources
before offering its dictum.
It matters, too, that these cases “were decided by the
narrowest of margins, over spirited dissents challenging
the basic underpinnings of those decisions.”88 In Moore,
——————
85 Grant, The Lanza Rule of Successive Prosecutions, 32 Colum. L.
Rev. 1309, 1311 (1932).
86 260 U.S. 377 (1922).
87 Id., at 381, 382.
88 Payne v. Tennessee, 501 U.S. 808, 828–829 (1991).
22 GAMBLE v. UNITED STATES
GORSUCH, J., dissenting
Justice McLean wrote that although “the Federal and
State Governments emanate from different sovereignties,”
they “operate upon the same people, and should have the
same end in view.”89 He “deeply regret[ted] that our gov-
ernment should be an exception to a great principle of
action, sanctioned by humanity and justice.”90 Bartkus
and Abbate, cases decided in the 1950s that more clearly
approved the separate sovereigns exception, were decided
only by 5-to-4 and 6-to-3 margins, and Justice Black’s
eloquent dissents in those cases have triggered an ava-
lanche of persuasive academic support.91
What is more, the “underpinnings” of the separate
sovereigns exception have been “erode[d] by subsequent
decisions of this Court.”92 When this Court decided Moore,
Lanza, Bartkus, and Abbate, the Double Jeopardy Clause
applied only to the federal government under this Court’s
decision in Palko v. Connecticut.93 In those days, one
might have thought, the separate sovereigns exception at
least served to level the playing field between the federal
government and the States: If a State could retry a de-
fendant after a federal trial, then the federal government
ought to be able to retry a defendant after a state trial.
But in time the Court overruled Palko and held that the
Double Jeopardy Clause does apply to the States—and,
——————
89 14 How., at 22 (dissenting opinion).
90 Ibid.
91 See,e.g., Cassell, The Rodney King Trials and the Double Jeopardy
Clause: Some Observations on Original Meaning and the ACLU’s
Schizophrenic Views of the Dual Sovereign Doctrine, 41 UCLA L. Rev.
693, 708–720 (1994); Braun, Praying to False Sovereigns: The Rule
Permitting Successive Prosecutions in the Age of Cooperative Federal-
ism, 20 Am. J. Crim. L. 1 (1992); Amar & Marcus, Double Jeopardy
Law After Rodney King, 95 Colum. L. Rev. 1, 6–15 (1995); King, The
Problem of Double Jeopardy in Successive Federal-State Prosecutions:
A Fifth Amendment Solution, 31 Stan. L. Rev. 477 (1979).
92 United States v. Gaudin, 515 U.S. 506, 521 (1995).
93 302 U.S. 319, 328–329 (1937).
Cite as: 587 U. S. ____ (2019) 23
GORSUCH, J., dissenting
with that, a premise once thought important to the excep-
tion fell away.94
Nor has only the law changed; the world has too. And
when “far-reaching systemic and structural changes”
make an “earlier error all the more egregious and harm-
ful,” stare decisis can lose its force.95 In the era when the
separate sovereigns exception first emerged, the federal
criminal code was new, thin, modest, and restrained.
Today, it can make none of those of boasts. Some suggest
that “the federal government has [now] duplicated vir-
tually every major state crime.”96 Others estimate that the
U. S. Code contains more than 4,500 criminal statutes, not
even counting the hundreds of thousands of federal regu-
lations that can trigger criminal penalties.97 Still others
suggest that “ ‘[t]here is no one in the United States over
the age of 18 who cannot be indicted for some federal
crime.’ ”98 If long ago the Court could have thought “the
benignant spirit” of prosecutors rather than unwavering
enforcement of the Constitution sufficient protection
against the threat of double prosecutions, it’s unclear how
we still might.
That leaves reliance. But the only people who have
relied on the separate sovereigns exception are prosecu-
tors who have sought to double-prosecute and double-
——————
94 Benton, 395 U. S., at 794.
95 South Dakota v. Wayfair, Inc., 585 U.S. ___, ___ (2018) (slip op., at
18) (internal quotation marks omitted).
96 E. Meese, Big Brother on the Beat: The Expanding Federalization
of Crime, 1 Texas L. Rev. L. & Pol’y 1, 22 (1997).
97 See Wilson, That Justice Shall Be Done, 36 No. Ill. L. Rev. 111, 121
(2015).
98 Clark & Joukov, Criminalization of America, 76 Ala. L. 225 (2015).
See also Larkin, Public Choice Theory and Overcriminalization, 36
Harv. J. L. Pub. Pol’y 715, 726 (2013) (“There are so many federal
criminal laws that no one, including the Justice Department, the
principal federal law enforcement agency, knows the actual number of
crimes”).
24 GAMBLE v. UNITED STATES
GORSUCH, J., dissenting
punish. And this Court has long rejected the idea that
“law enforcement reliance interests outweig[h] the interest
in protecting individual constitutional rights so as to
warrant fidelity to an unjustifiable rule.”99 Instead, “[i]f it
is clear that a practice is unlawful, individuals’ interest in
its discontinuance clearly outweighs any law enforcement
‘entitlement’ to its persistence.”100 That is the case here.
The Court today disregards these lessons. It worries
that overturning the separate sovereigns rule could un-
dermine the reliance interests of prosecutors in transna-
tional cases who might be prohibited from trying individu-
als already acquitted by a foreign court. Ante, at 7. Yet
even on its own terms, this argument is unpersuasive.
The government has not even attempted to quantify the
scope of the alleged “problem,” and perhaps for good rea-
son. Domestic prosecutors regularly coordinate with their
foreign counterparts when pursuing transnational crimi-
nals, so they can often choose the most favorable forum for
their mutual efforts. And because Blockburger requires an
identity of elements before the double jeopardy bar can
take hold, domestic prosecutors, armed with their own
abundant criminal codes, will often be able to find new
offenses to charge if they are unsatisfied with outcomes
elsewhere.
* * *
Enforcing the Constitution always bears its costs. But
when the people adopted the Constitution and its Bill of
Rights, they thought the liberties promised there worth
the costs. It is not for this Court to reassess this judgment
to make the prosecutor’s job easier. Nor is there any
doubt that the benefits the framers saw in prohibiting
double prosecutions remain real, and maybe more vital
——————
99 Arizona v. Gant, 556 U.S. 332, 350 (2009).
100 Id., at 349.
Cite as: 587 U. S. ____ (2019) 25
GORSUCH, J., dissenting
than ever, today. When governments may unleash all
their might in multiple prosecutions against an individual,
exhausting themselves only when those who hold the reins
of power are content with the result, it is “the poor and the
weak,”101 and the unpopular and controversial, who suffer
first—and there is nothing to stop them from being the
last. The separate sovereigns exception was wrong when
it was invented, and it remains wrong today.
I respectfully dissent.
——————
101 Bartkus, 359 U. S., at 163 (Black, J., dissenting).