Justice Kagan Throws Shade on Her Originalist Colleagues
“Your argument seems, frankly, a little bit one-note,” Kagan told counsel to the challenger during one exchange Thursday in the case Gamble v. United States, which confronts double-jeopardy and an exception to the clause.
December 06, 2018 at 02:42 PM
4 minute read
The original version of this story was published on National Law Journal
Some U.S. Supreme Court justices think “original understanding” is the “alpha and omega of every constitutional question,” Justice Elena Kagan said Thursday, but “there are other people on this bench who do not.” She and others indicated they would need more justification for throwing out a court-created doctrine in a case that has potential consequences for special counsel-related prosecutions.
“Your argument seems, frankly, a little bit one-note,” Kagan told Jones Day partner Louis Chaiten at argument in the case Gamble v. United States. “You're going to have to give me more.”
Chaiten is counsel to Terance Gamble, an Alabama man who was convicted and sentenced in state and federal prosecutions for the same crime: felon in possession of a firearm. Gamble is asking the justices to overrule a 170-year-old doctrine that is known as the “separate sovereigns” exception to the Fifth Amendment's double jeopardy clause. That clause prohibits more than one prosecution or punishment for the same offense.
Gamble's case has drawn considerable attention because of its possible import for Special Counsel Robert Mueller's investigation and prosecutions of Russian interference in the 2016 election and involvement of the Trump campaign. Elimination of the separate sovereigns exception could bar states from pursuing certain prosecutions under their state laws. Mueller's investigation did not come up during Thursday's arguments.
During the 80-minute argument, Chaiten emphasized that the separate sovereigns exception was inconsistent with the original meaning of the double-jeopardy clause as well as its text and purpose. But his original meaning argument ran up against what Justice Brett Kavanaugh, himself a self-described originalist, said was “another part of the original understanding—stare decisis” (standing by precedent).
Chaiten has to show the exception is “grievously wrong or egregiously wrong,” Kavanaugh told him during one exchange. And given the uncertainty that historical evidence supports Gamble's position, Kavanaugh questioned whether Chaiten could clear that “high bar.”
Justice Samuel Alito Jr. probed how Chaiten's interpretation of the clause would apply to foreign prosecutions. If American citizens were murdered by terrorists in a foreign country and the terrorists were acquitted after a foreign prosecution, Alito asked, “is it your position they can't be prosecuted here?”
Chaiten replied that under the original understanding of the double-jeopardy clause, whether America could prosecute those terrorists would depend on whether an American court recognized the concurrent jurisdiction of the foreign court.
Justice Stephen Breyer noted an amicus brief filed by Native American Indians, who said the separate sovereign exception was important to successive prosecutions of domestic violence crimes on reservations.
But Chaiten said the potential for successive prosecutions and punishments has increased significantly with the federalization of many more crimes.
Assistant to the Solicitor General Eric Feigin and Texas Solicitor General Kyle Hawkins told the justices that successive prosecutions sometimes were necessary. Feigin pointed to Native American domestic violence crimes as well as the need for the federal government to step in at times to prosecute civil rights law violations.
Justice Ruth Bader Ginsburg questioned the government's heavy reliance on federalism for its defense of the exception.
Federalism, Ginsburg said, usually is looked to as protection of the individual, but the government is using it to defend state and federal freedom to prosecute the individual. Justice Neil Gorsuch added that he could not think of another case where federalism was used to allow “more intrusion” on individual liberty.
Feigin warned that overruling the exception would result in a first-to-file race to courthouses by prosecutors; would deter cooperation between law enforcement; and would allow criminal defendants to play one sovereign against another.
|Read more:
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View All'Don't Be Afraid to Dumb It Down': Top Fed Magistrate Judge Gives Tips on Explaining Complex Discovery Disputes
Newly Formed DEI Practices Expect Heightened Demand During Trump Administration
Major Plaintiff Victories: Women's Health Care Gets Expensive in Court
6 minute readAttorney Claims Phila. Roundup Trial Schedule Has Given 'Unfair' Preference to Certain Firms
4 minute readTrending Stories
- 1Legal Departments’ Lack of Third Party Oversight Leaving Small, Midsize Banks Exposed
- 2Walmart Accused of Misrepresenting 'Cheese' Ingredients in Great Value's Macaroni & Cheese
- 3Manhattan Lawyers' Group Prepares to Challenge Trump’s Plan for Mass Deportations
- 4Deal Watch: Simpson, Freshfields, Wachtell Lead Big Deals as SPACs, IPOs Crank Up
- 5In Mafia Case, Justices Ponder: Is Murder Always Violent?
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250