The Double Jeopardy Clause of the Fifth Amendment provides that “No person shall…be subject for the same offence to be twice put in jeopardy of life or limb.” That clause means that no person can be prosecuted twice for the same crime. Historically, the Double Jeopardy Clause had not been held to bar separate sovereign governments from trying an individual for the same crime, a doctrine known as the separate-sovereigns doctrine. Because the federal and state governments are separate sovereignties, the Double Jeopardy Clause had historically been held not to prohibit the Federal government from prosecuting an individual for an offense for which that individual had already been tried in state court.
This term, the United States Supreme Court heard argument on this very issue, in Gamble v. United States. Supreme Court observers wondered whether the country’s highest court was poised to reverse historical tradition and hold that the Double Jeopardy Clause does, in fact, prevent federal prosecutions of crimes already tried in state court. The Court, however, held fast to historical precedent, finding, in a majority opinion authored by Justice Alito, that the historical arguments offered by the appellant were too weak to “overcome numerous ‘major decisions of this Court’ spanning 170 years.” Six justices joined Justice Alito’s opinion.
Justice Thomas submitted a concurring opinion in which he decried the majority’s formulation of stare decisis, the doctrine of precedent. Echoing his majority opinion in Franchise Tax Board of California v. Hyatt, Justice Thomas wrote that the majority’s reliance on stare decisis violates the Court’s duties under Article III of the Constitution, which signals Justice Thomas’s continuing willingness to overturn past precedent he believes was wrongly decided.
Justices Ginsburg and Gorsuch wrote separate dissenting opinions. Justice Gorsuch, coming to a different conclusion than Justice Thomas, mirrored Justice Thomas’s skepticism of the import of stare decisis. Justice Gorsuch emphasized that stare decisis is “at its weakest when we interpret the Constitution.”