Courthouse Steps Decision Teleforum: Gamble v. United States

Criminal Law & Procedure Practice Group Teleforum

Listen & Download

In Gamble v. United States, Terance Gamble received two sentences and two convictions for the same crime - once under Alabama law and once under federal law due to the doctrine of dual sovereignty. While convicting someone twice for the same crime usually violates the double jeopardy clause of the constitution, the Supreme Court decision in Abbate v. United States declared that because states and the federal government are separate sovereigns, an individual can be prosecuted for the same crime twice, once by the Federal government, and once by a state government. In Gamble v. United States, the Supreme Court upheld this dual sovereignty doctrine. Clark Neily joins us to discuss the decision and its implications. 

Featuring: 

Clark Neily, Vice President for Criminal Justice, Cato Institute

 

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

Event Transcript

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Criminal Law & Procedure Practice Group, was recorded on June 20, 2019, during a live teleforum conference call held exclusively for Federalist Society members.       

 

Micah Wallen:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is the recent Supreme Court decision in Gamble v. United States. My name is Micah Wallen, and I am the Assistant Director of Practice Groups here at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the expert on today's call.

 

      Today we are fortunate to have with us Clark Neily, who is Vice President for Criminal Justice at the Cato Institute. After our speaker gives his opening remarks, we will then go to audience Q&A. Thank you for sharing with us today. Clark, the floor is yours.

 

Clark Neily:  Well, thanks for having me on to discuss what is arguably one of the most important and historically venerated protections for criminal defendants, and that is the protection against being prosecuted twice for the same offense. And it doesn't take any real reflection to understand why this would be so important because, of course, when the government prosecutes a defendant, it's because the government is convinced that the defendant has committed a crime.

 

      But we have a constitutionally prescribed mechanism for adjudicating those charges that leaves it to the decision of at least a theoretically neutral decision maker in a jury, specifically, is what the Constitution provides will be the decision maker in criminal cases. And that makes a lot of sense because you have a government that is already convinced of the individual's guilt, but that charge needs to be adjudicated by somebody without a dog in the fight.

 

      Now, if we allowed the -- if we didn't have the double jeopardy provision, you can envision a situation where the government gets to keep coming at the same defendant over and over again if they are unsatisfied with the initial verdict. The person gets tried, acquitted. Government remains convinced that the person is guilty, so they get a second bite at the apple, and they get to try the case differently because of the things that they learned the first time during the unsuccessful prosecution. And just allowing the government to continue prosecuting somebody over and over and over again until they are able to obtain a conviction would be intolerable.

 

      And so that's the essence of the double jeopardy provision in the Fifth Amendment. The question presented in the Gamble case is whether that provision applies to successive prosecutions by the state, which is who went first in this case, and then the federal government. In other words, if the state and the federal government want to prosecute somebody for the exact same conduct, can they do it successively? And that was the question that was presented in Gamble v. United States that came down earlier this week.

     

      The crime at issue, the underlying crime, is one of the most pedestrian and banal crimes you can imagine, and frequently prosecuted in this country, and it is the possession of a firearm by a felon. Mr. Gamble was pulled over during a traffic stop in Alabama. He was found to possess drugs, I believe also a digital scale, and a handgun. And so the state prosecuted him for being a felon in possession, which is a violation of Alabama state law. He plead guilty to that charge and received 12 months prison sentence.

 

      For reasons that are not apparent from the briefing or the opinion, the federal government then decided to prosecute Mr. Gamble for the exact same crime under federal law because there is a parallel federal law, Section 922(g), that makes it a federal crime to be a felon in possession of a handgun -- or a firearm. Sorry. Mr. Gamble made a constitutional objection or a defense and entered a conditional plea of guilty. So what he said was, "I don't think it is constitutional for you, federal government, to prosecute me for a crime for which I've already been convicted by the state, but I will issue a conditional -- or enter a conditional plea of guilty provided I can pursue this constitutional argument on double jeopardy grounds in the courts." So that was the posture of the case.

 

      The Eleventh Circuit affirmed -- oh, so I should say the district court accepted the conditional plea and sentenced Mr. Gamble to 46 months in prison, so four years as opposed to the one year that he got from the state, to run concurrently with the state sentence, so an extra three years in prison after the federal conviction. The Eleventh Circuit affirmed, as it was bound to do, because the existing Supreme Court precedent permits this.

 

      But the Supreme Court granted cert to take a fresh look at the so-called dual sovereigns or separate sovereigns doctrine that has been part of our constitutional jurisprudence for more than 70 years that holds that, in fact, there can be successive prosecutions for the exact same conduct by the state and federal government. It can go state first, or it can go the federal government first, so it can so state then federal, like in this case, or it can go federal then state.

 

      And you can even do it after an acquittal. So if Mr. Gamble had been acquitted after a jury trial in Alabama State Court, according to the separate sovereigns doctrine, it still would have been constitutionally permissible for the federal government to then try him for the exact same crime —not from the exact same statue book, of course, because it was a state crime in the state proceeding, but now it's a federal crime in the federal proceeding—and see if they can get a conviction in the second prosecution.

 

      So that's the question presented to the Supreme Court: Should the Court revisit and overturn the dual sovereigns exception to the Fifth Amendment? And in a 7-2 ruling with an interesting concurrence by Justice Thomas on the issue of precedent, or on the subject of precedent, the Supreme Court affirmed the dual sovereigns doctrine and affirmed the conviction. And so the opportunity to take a fresh look at the dual sovereigns doctrine and eliminate it was rejected, and so that -- it seems very unlikely that the dual sovereigns doctrine will be eliminated from our constitutional jurisprudence.

 

      And so I think this important protection, or what was meant to be an important protection for criminal defendants in our system to prevent the government from taking multiple bites at the apple, has, like so many other provisions of the Bill of Rights, been effectively neutered by this decision. And as you can probably tell, it's not one that I agree with. And I think it's no accident that the dual sovereigns exception to the Double Jeopardy Clause has been the subject of sustained and almost uniform criticism in other circles besides the Supreme Court, both in lower courts and in legal academia.

 

      But we're stuck with it, so the question, I suppose, at this point, is does the decision seem to be -- to rest on sound analytical and jurisprudential grounds, or was it more of a stretch? And in my judgement, it was more of a stretch. And I think Justice Gorsuch and Justice Ginsburg in their separate dissents had the better of the argument.

 

      And I would close by adding that I think it is almost certainly no accident that neither in the government's briefing nor in Justice Alito's majority opinion is there any significant discussion of the historical purpose of the double jeopardy protection in the Fifth Amendment and the effect or the impact of this decision and this doctrine on that constitutional protection because I think it is -- this result is flatly contrary to the whole purpose and kind of animating reason for having a double jeopardy protection in the first place. And this pretty well guts it, and I think that's unfortunate.

 

      So I'll close with that and looking forward to an interesting and hopefully lively discussion.

 

Micah Wallen:  Thank you, Clark. We will now go to our first question.

 

Greg Brower:  Hey, Clark. This is Greg Brower. Well done with the summary. That was great. Interesting issue, to say the least.

 

      The question that I wanted to get your thoughts on has to do with kind of the last point you made regarding the purpose of the Double Jeopardy Clause, and that is that I think the traditional purpose, it seems to me as a lawyer and as a former prosecutor, is that the government—meaning the same government, because, of course, when we're talking about the state and the federal governments, two different governments, two sovereigns, as the majority makes clear—but the purpose is that the government cannot retry someone for the same crime after he or she has been acquitted. That, I think, is the core of the double jeopardy protection.

 

      And of course, that is not what this case is about. But even if it was an acquittal in state court, as you know, the law, the Constitution would allow the second sovereign to try the defendant, even if there had been an acquittal. I think that's always kind of been my impression of the core purpose of the Double Jeopardy Clause. I'm interested in your thoughts.

 

Clark Neily:  Yeah. Thanks so much, Greg. I appreciate the kind words. Yeah, I think I would agree that at its most fundamental, the purpose of the double jeopardy protection is to prevent what you described, and that is to allow the government to get a second bite at the apple after you've already been acquitted in an initial proceeding. But I don't think that's the only purpose of the double jeopardy protection, and I think that, like so many other constitutional provisions, it has multiple purposes.

 

      And I do think one of them is to protect people from the exposure to essentially kind of just being hounded almost indefinitely for a particular incident, a particular bit of conduct. And so the idea that just because Mr. Gamble was not acquitted in a state proceeding, that sort of resolves any double jeopardy concerns, I think it certainly resolves a double jeopardy concern, which is that you don't want someone who's been acquitted being subjected to another prosecution. But of course, that could have happened. That is part and parcel of the Supreme Court's dual sovereigns doctrine is that, in fact, had he been acquitted in state court, he could have been prosecuted again. It just didn't happen to have happened in this case.

 

      But what happened in this case is still concerning, I think, because as practitioners understand very well, so much of the federal system, the penalties under federal law can be extraordinarily draconian. And they typically are much more draconian that the punishment in the states for the same conduct. And so if you are an individual who has allegedly engaged in certain conduct that constitutes both a state and a federal crime, I think you've got to be thinking really hard right now what it means to plead guilty in a state court proceeding. It doesn't mean that you are safe from the subsequent federal prosecution where you might be looking at far more time. I mean, in this case, he's looking at four times the sentence that he received at the state level.

 

      I still think that's a really serious concern, even if it's not quite at the same level as the concern that we have for someone who has been acquitted and then faces a subsequent prosecution from a separate sovereign. So the concern you raise I do think is even more fundamental and a graver concern in some ways, but I don't think that it is the only concern that may have animated the double jeopardy protection.

 

Micah Wallen:  And in the meantime, Clark, I'd like to ask, going back to the original founding, original Constitution, obviously, the federal government at the time was not expected to have a police power and was intended for that to be reserved to the states. How does that factor into the analysis here when you have this federal law which almost 100 percent overlaps exactly with this state law? Do you think that factors into this analysis at all, or should it?

 

Clark Neily:  I think it should. Justice Alito didn't, and the point that you just made, which I may elaborate on in just a moment, didn't really factor into his opinion either. He does mention it, but it doesn't get more than a paragraph. But I do think it's something that people of a Federalist Society mindset should be very focused on.

 

      And here's the really fundamental point. The Framers of our Constitution consciously, deliberately, and very carefully denied the federal government a general police power of the kind that the states have. They actually did articulate several federal crimes or several things that could be federal crimes including piracy on the high sees and counterfeiting. And one can, I think, fairly assume from their decision to specifically highlight or identify a handful of federal crimes, a clear intent not to commit to the federal government a general police power. And I think that's fairly unexceptionable among members of The Federalist Society.

 

      So at the founding, you had a federal government that had neither the authority nor the inclination to criminalize sort of significant amount of conduct. There were only a handful of federal crimes at the founding. Of course, in the modern era, it couldn't be more different. And as a number of amicus briefs and even a couple of Justices noted, there are actually very few state criminal laws for which there is not some federal analogue. So if you commit a state offense, there's a very good change that it will also be a federal offense.

 

      And I just don't think there's the slightest doubt how the founding generation would have looked at that. I think they would have had two huge concerns. One is that the federal government is exercising a general police power to criminalize conduct that they specifically withheld from it. I mean, of course, it's doing that in the -- basically with the strength of some rather dubious Supreme Court decisions, and a dubious Supreme Court doctrine under the Commerce Clause.

 

      But then I think their second concern would be that, as Justice Gorsuch points out in his dissent, an interpretation of the Fifth Amendment that places so much emphasis on the word "offense" -- so the Fifth Amendment says that no person shall be twice put in jeopardy of life or limb for the same offense. Justice Alito reads that term offense in a rather lawyerly and technical way to refer only to a crime as defined by a particular sovereign, not as an act or a transgression.

 

      And Justice Gorsuch takes issue with that, I think, in a way that's quite powerful and says that he doubts that the Framers would have understood the term "same offense" to bear such a lawyerly and sovereign specific meaning. And I think that's almost certainly right. He points out that constitutional provisions tend to be written in more kind of sweeping and momentous terms, not sort of statutory and specific.

 

      And so I think it's quite doubtful that the founding era would have -- or members of the founding era would have understood the term offense to apply or to have such a literal and technical meaning, and they would have essentially said, "Look, this -- the word offense in this provision essentially means an alleged violation of law." And in this case, the alleged violation of law was being a felon in possession of a firearm. Whether that's a crime at the state level, the federal level, or both, the government, doesn't matter which level of government, you only get one shot at the guy for that.

 

      But how do we know? I mean, we're attributing perspective to people we can't interview and can't meet, but I do think that's a more plausible -- I think it's a more plausible way of imagining that they would have seen the current situation. I think they would have been extremely troubled by the idea of a situation where the federal government has the power to go after people for virtually any crime of which they have been tried, whether they're acquitted or convicted by the states and where, essentially, every -- almost -- basically, everybody is now facing the possibility of two prosecutions for the same conduct which I think accurately describes the current state of affairs. I think they would have found that to be extremely concerning and perhaps even intolerable.

 

Micah Wallen:  We now have several questions lined up, so without further ado, we'll move on to the next question.

 

Shelton Vaughan:  Hey, Clark. This is Shelton Vaughan. I really appreciate your making this presentation. This is something I haven't followed, and I haven't read the case, but it's very interesting. You mentioned the dissent. I'm curious what the Gorsuch dissent focused on. I know you just talked about the interpretation of the word offense, but if you could describe the Gorsuch and Ginsburg dissent, I think that would be helpful and interesting.

 

Clark Neily:  Yes. I think Justice Gorsuch has the longer dissent, and the thrust of it is that the majority's interpretation of offense as being sovereign specific so that they attribute to the Framer's essentially an intent to use the word offense in a way that only applies or that applies very technically to a crime that has been articulated by a particular sovereign is a dubious reading of that word in the scheme of things and would need to be supported by fairly extraordinary evidence. And then Justice Gorsuch demonstrates that the evidence in support of that reading is far from extraordinary. In fact, he cuts very sharply the other way.

 

      And if you actually go back and look at both the -- what seems to have been the English practice and sort of founding-era treatises, there's a consensus. At least, I understand there to be a consensus, and Justice Gorsuch says there was one, that they were very aware of the possibility of successive prosecutions by separate sovereigns and that the rejected them. There was even a case in England where a person was accused of committing a murder -- or an English citizen was accused of committing a murder of another English citizen in Portugal, or possibly Spain. The reports differ, but probably Portugal. He was acquitted of that and then subsequently prosecuted in England, and the courts found that prosecution could not go forward. There's actually a common law defense called autrefois acquit, which is either French or Latin for you've already been acquitted.

 

      So Justice Gorsuch places significant weight on these historical sources. His reading of the treatises is different than Justice Alito's. His reading of the contemporary treatises is that they also reflect an understanding at the founding era that subsequent prosecutions by separate sovereigns were improper. Not surprisingly, I find Justice Gorsuch's treatment of the secondary sources and the relevant historical, or I should say English precedents, more convincing that Justice Alito's. But I think the best that one could say is that they're in equipoise. And I think, frankly, that's charitable. But let's say that the secondary sources are in equipoise. Then it kind of comes down to the question of who do you think sort of bears the weight of persuasion.

 

      And I think that the weight of persuasion is on, or should be on, whoever is advocating for an interpretation of the relevant language that would significantly deprive it of much of its effect and create a situation, as I alluded to earlier, where virtually -- I don't know if I could say virtually every, but let's say the vast majority of defendants, of state court criminal defendants, are now exposed to the possibility of a subsequent federal prosecution, whether they are convicted or acquitted in the initial state proceeding. It seems to me extraordinarily unlikely that the Framers would have felt comfortable with that scenario. And on the contrary, it seems quite likely that they would have found that scenario to be extraordinarily troubling.

 

      And so I think Justice Gorsuch and, of course, I would then say, well then, the sort of burden of demonstrating that the dual sovereigns exception to the double jeopardy clause, that the burden of demonstrating that it is the better reading of the relevant language lies with those who would embrace the dual sovereigns exception.

 

      Justice Alito, I think, neatly kind of sidesteps that argument by saying, "Well, but it's precedent and so we're not writing on a blank slate here. So maybe if we were, we'd have more work to do, but we're looking at at least 70 years of Supreme Court precedent here, and so, in fact, no, the burden is on you who would suggest overruling or advocate for overruling this precedent. You have to make powerful cases, sufficiently powerful case for overruling precedent."

 

      And I think we should get into, maybe momentarily, what may be going on behind the scenes here because I do think that the question of what to do about precedent and whether the Court should lightly overrule precedent or not lightly overrule precedent in this probably very, very significant -- and a lot of it's going on in the background, except in Justice Thomas's concurrence, which is all about precedent. But I do think there is something -- there may well be something going on beneath the surface here where a lot of what the Justices are doing, a lot of the argument they're having back and forth is more about precedent than about the merits of this case.

     

      And I would say, just quickly on Justice Ginsburg's dissent, I think it's largely -- not overlapping, but largely based on the same rationale as Justice Gorsuch's. And I think she finds unconvincing or unpersuasive, as do I, and as did Justice Gorsuch, the proposition that the Framers clearly meant for the term offense in the Fifth Amendment to have the rather technical and sovereign specific meaning that the majority attributes to it.

 

      And then, of course, there's also the fact that the Double Jeopardy Clause was not incorporated at the time that the Supreme Court first kind of invented the dual sovereigns doctrine. And that has potential relevance that I won't delve into, but that's another point that the majority was -- I won't say they give it short shrift, but found on, sort of -- by which they were unmoved. Let's put it that way. I'll just end with that.

 

Micah Wallen:  All right. We'll now move to the next question.

 

Don Santarelli:  This is Don Santarelli. Good work, Clark. One ideally likes the rationale of a Supreme Court opinion to fairly compel the result. In Alito's analysis, it doesn't have the sort of compelling rationale, just deference to precedent. Alito tends to, over the years, be supportive of the Executive function and less libertarian in questioning power, authority, etc. Can you read anything into his opinion that seems derivative of that, or is precedent his fig leaf?

 

Clark Neily:  Well, thank you for that question. I certainly wouldn't try to get inside the head of a sitting Supreme Court Justice to say whether I thought an argument was a fig leaf or not. Or at least, I wouldn't do it lightly, and I wouldn't do it in this context. I do think that Justice Alito does tend to sympathize with -- or maybe sympathize is not the right word, but tends to credit arguments in favor of the exercise of federal power in the criminal space. That does seem to be a pretty consistent mindset. And of course, that's not surprising given his background as a career federal prosecutor.

 

      I do think that there's a very interesting aspect to this case that didn't receive as much attention as I think perhaps it should, and that is that one of the federal government's arguments in its briefing is that one reason not to be too concerned about this door that is opened up by the dual sovereigns exception, and particularly in an environment where so much of the federal criminal code duplicates state criminal code so that you really do face this very real possibility of being prosecuted back to back, first by the state and then by the federal government, is that there's this doctrine called the Petite doctrine that is embodied in the U.S. Attorney's manual.

 

      And it provides that subsequent prosecutions like the kind that happen in Gamble are disfavored and should only be undertaken when there are some really powerful and compelling federal interests, and that even then, an Assistant Attorney General has to sign off on it. So we don't really need to worry. These things are going to be rare and unlikely, and just not going to happen very much because they only happen when there's a really compelling federal interest at stake.

 

      But then you look at the facts of this case and you say, "Look, this is a garden variety felon in possession case where the guy got convicted at the state level. And if this case qualifies for subsequent federal prosecution, can you possibly think of a case that wouldn't?" And so this -- go ahead.

 

Don Santarelli:  Right. I'm concurring in your analysis.

 

Clark Neily:  Yeah. So it really kind of, to me, rings hollow that they would say, "Oh, you know, don't worry about eroding this constitutional protection because you can trust us to be very reasonable in exercising this power that we will now wield," or, well, I should say, continue to wield. And I just -- the facts of this very case seem to completely undercut that assurance. And that's putting aside the fact that we shouldn't have to depend on the discretion of individual prosecutors or even the Department of Justice itself to enjoy protections that are explicitly or even plausibly articulated in the text of the Constitution. But that seems to be -- that's where the government ends up in this case is we should just sort of basically rely on their discretion.

 

      And let me add one more thing, and that is that Justice Alito makes the point in his majority opinion that, and the government made this point in its briefing, that it's been fairly rare that we have seen subsequent federal prosecutions of this kind, to which my response, in part, is yeah, because it's so rare that we ever see an acquittal. I mean, the vast majority of people who are indicted in this country, whether in the federal system or in the state system end up pleading guilty.

 

      The rate of acquittals in federal system is -- I can't remember what it is, but I think it's something like 0.4 percent of people who get indicted end up ultimately acquitted. And so we wouldn't expect to see this very often. Because why? Because prosecutors in this day and age almost never lose a case. And there's just not much call for a separate sovereign to be able to come in and essentially backstop an acquittal and maybe -- who knows what happened in this case.

 

      It's mystifying why a federal prosecutor felt that with everything that's going on in the world, they should take time out of their busy schedules and just basically stick it to this guy for an extra three years in federal prison. Maybe there's a story there that we don't know, but it didn't come through in the briefing, and it certainly doesn't come through in any of the opinions. And so it leaves one kind of mystified why the federal government felt that it had to use this, I think, exceptional, or hopefully exceptional and rather extraordinary power in such a garden variety, or such a seemingly garden variety and pedestrian case.

 

Don Santarelli:  Well, I think your answer to my question was answered in your speculation as to the politics of precedent.

 

Clark Neily:  Could be. Could be.

 

Don Santarelli:  That's not why I look at it. Thank you so much.

 

Clark Neily:  You bet.

 

Micah Wallen:  We'll now go to our next question.

 

Caller 4:  Yeah. I wondered since this is a matter of constitutional interpretation whether you think that there's a statutory fix that Congress could enact and what that might look like.

 

Clark Neily:  Yeah, that's a great question. And the answer, I think, is yes because, obviously, there's no constitutional obligation for the federal government to exercise this power that the Supreme Court has left intact. So I'd have to sort of think through what the wording would be, but we certainly have some guidance because there's a significant number of states, I forget what the count is, but it's more than a dozen. I mean, it may be as many as 20 or 25 that have at least some protection against subsequent prosecutions, even when the Constitution has been interpreted to permit them. And so we -- there certainly is already some existing statutory language at the state level that we could look at to essentially figure out what's the right way to word this.

 

      And I think that would be a very salutary response on the part of Congress. But of course, this is the exact same Congress that has effectively chosen to wield a constitutionally forbidden general police power. So I guess the question is are they really being kept up at night by the fact that not only should -- well, I mean, just take a look at the crime in question here. This is a felon in possession. It is not obvious where the federal government gets the authority to criminalize that conduct. I mean, you actually have to go and look at the text of 922(g), and then you won't be surprised to see that there's the standard reference to anybody who possesses a firearm in commerce or affecting commerce, so you know what the hook is going to be.

 

      But if you've got a Congress that is wielding constitutionally dubious power to effectively arrogate to itself a general police power, is it likely that that same Congress is then going to come along and say, "Oh, but you know what, let's go ahead and make sure we amend the federal code to make sure people are not exposed to successive prosecutions." I'd like to hope so, and I think they should, but I'm skeptical whether they will.

 

Caller 4:  One quick follow up, that DOJ exercised the discretion rule that you talked about. Is that called the Petite rule, you said?

 

Clark Neily:  It is. P-E-T-I-T-E. I don't know how to pronounce it because I've never heard anybody say it, but that would normally be pronounced "petite." So I call it the Petite Policy. It's said to be reflected in the U.S. Attorney's manual. But there was no representation in this case. And in fact, they got sign off from an assistant AG, and there's no explanation anywhere that I could see in any of the briefing about why this was supposedly an extraordinary case justifying the resort to this subsequent prosecution power. It just seems like they just decided that a year in state prison was insufficient, so this guy's going to get four in federal.

 

Micah Wallen:  We don't have any more questions lined up at the moment.

 

Clark Neily:  Micah, I do think we might want to talk about precedent a bit in this case and what's going on with it.

 

Micah Wallen:  All right, absolutely. While we're waiting for some more questions to come in, go ahead and expound on that.

 

Clark Neily:  Well, there's a lot of high-level speculation in Supreme Court watcher circle these days that precedent has become an extremely fraught issue, and that cases calling for the Supreme Court to basically abandon stare decisis and to reverse existing doctrines or cases, that this is a particularly bad time to be asking the Court to do that because there's an elephant in the room, and the name of the elephant in the room is Roe v. Wade.

 

      There is great concern on the part of our friends, the liberal Justices, the ones on the left, that the right to -- the Supreme Court found constitutional right to an abortion may be in jeopardy with the current makeup of the Court, and certainly if President Trump gets to name another Justice that the Roe and Casey line of cases could be in some jeopardy. And that a lot of what's going on is signaling between the various kind of factions of Justices about how seriously the Court ought to take stare decisis, how lightly or casually on the one hand or reluctantly Justices should reject existing precedent.

 

      And Justice Thomas has this rather strange concurrence where he goes on at some length about how precedent should not be given as much weight as it typically is, about how the real question in any case, in any constitutional case, the touchstone of the Court's inquiry should be the relevant constitutional text and not just what the Court has said about it over the years. But then at the end, he goes through this whole explanation of how we shouldn't give so much weight to precedent, and then at the end says, "But I'm going to give weight to precedent in this case," because, for him, the rationales or the arguments in favor of and against the dual sovereigns exception were basically kind of in equipoise. And so he says, "So that's not enough for me to overrule precedent."

 

      But anyway, I do think -- of course, we cannot know what's going on in any given case, but it does seem that the Court is -- the members of the Court, the Justices, seem unusually mindful of and sensitive to issues of precedent and stare decisis. And so to be a litigant in a position asking the Court to overturn existing case law or existing doctrine, this term seems like a bad place to be. This is not a good term to be asking the Court to overturn some case, and if that's what you need them to do in order to rule in your favor, then your chances are probably less good this term. Still not impossible, but less good this term than they might be some other term.

 

Micah Wallen:  All right. Thank you, Clark. No more questions have lined up, so I believe that is all we have for today. Clark, did you want to any other further closing remarks on Gamble?

 

Clark Neily:  No. I think -- well, I will just add one thing. I do think that, and this won't surprise anybody because of my current job as being in charge of criminal justice reform at Cato, but I do think that there is reason to be concerned about a system where the prerogatives in favor of the government, in favor of prosecutors are such that almost nobody exercises their constitutional right to a jury trial anymore. And any ruling that exerts more pressure or enables prosecutors to exert more pressure on people to abandon the constitutionally prescribed mechanism for adjudicating criminal charges is one that we should be concerned about. And I do think that this decision affirming the dual sovereigns doctrine will enhance the power of prosecutors to exert pressure on people to plead guilty to crimes. And I think we should all be very concerned about that, whether we agree or not that it's a legitimate practice.

 

Micah Wallen:  All right. Thank you, Clark. And on behalf of The Federalist Society, I would like to thank our expert for the benefit of his valuable time and expertise today. We welcome listener feedback by email at info@fedsoc.org. Thank you all for joining us. We are adjourned.

 

Operator:  Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at www.fedsoc.org/multimedia.