Gorsuch, swing vote?

Neil Gorsuch hates the government. Maybe he'll turn that anger towards prosecutors.

CREDIT: Eric Thayer/Getty Images
CREDIT: Eric Thayer/Getty Images

Neil Gorsuch’s civil opinions read like robber baron fan fic. Unmoved by discrimination. Contemptuous of workers’ rights. Gorsuch views longstanding precedents as a cavalcade of errors handed down by judges who lack his wisdom. He spent his first full term hunting for cases to overrule.

Yet, in criminal cases (and in the criminal law’s close cousin, immigrant detention cases) Gorsuch sometimes stands at the center of the Supreme Court. At times, the illegitimate justice’s anti-government views lead him to view prosecutors with the same skepticism he directs at environmental regulation.

The result is what Slate’s Mark Joseph Stern labels the “Gorsuch Brief,” a brief that leans into Gorsuch’s penchant for textual and historical arguments, and that treats him as the man criminal justice advocates need to win over to prevail.

This tactic is on full display in Gamble v. United States, a case asking the Supreme Court to overrule a bizarre doctrine that allows multiple states — or several states and the federal government — to all prosecute the same individual for the same crime.


If Terance Martez Gamble — a man convicted of being a felon in possession of a firearm by federal and state courts — prevails in his case, the Supreme Court would breathe new life into the Constitution’s command that no one shall “be subject for the same offense to be twice put in jeopardy of life or limb.”

It’s clear from Mr. Gamble’s brief that his lawyers think Gorsuch is the key to victory.

Separate sovereigns

Gamble asks the Court to overrule the “separate sovereigns” doctrine, an exception to the Constitution’s Double Jeopardy Clause which permits duplicative prosecutions by multiple states — or by a state and the feds.

The Supreme Court held almost a century ago in United States v. Lanza, that states derive their power to prosecute from the “power originally belonging to the States” prior to the drafting of the Constitution. “We have here two sovereignties,” the Court continued, “deriving power from different sources, capable of dealing with the same subject-matter within the same territory.”


The separate sovereign doctrine, in other words, flows from a mythology that drives much of the Supreme Court’s states’ rights decisions. Prior to the Constitution, the 13 original states were each sovereign nations. The Constitution transferred some of that sovereign authority to the federal government, but states also retained a degree of sovereignty. Thus, Lanza concluded that permitting the federal government to impede state prosecutions (or vice versa) would deny these separate sovereign bodies a degree of their autonomy.

Yet, while this mythology fairly accurately describes the early Republic, it’s much more difficult to square with Manifest Destiny. Most American states weren’t sovereign nations that gave up a portion of that sovereignty as the price of Union. Most states were carved out from U.S. territories that were previously under Congress’ dominion.

And there’s another, much more legally significant problem with decisions like Lanza. The separate sovereigns doctrine arose at a time when most of the Bill of Rights did not apply to the states. The Supreme Court did not hold that state governments must comply with any part of the Bill of Rights until 1897. It did not hold that states must comply with the Double Jeopardy Clause until 1969. And the cases establishing the separate sovereigns doctrine rest on the assumption that states are not bound by this Clause.

“The Fifth Amendment, like all the other guaranties in the first eight amendments, applies only to proceedings by the Federal Government,” the Court held in Lanza, “and the double jeopardy therein forbidden is a second prosecution under authority of the Federal Government after a first trial for the same offense under the same authority.”

But now, as Gamble’s lawyers write in his brief, the Double Jeopardy Clause “applies to the states, and the separate-sovereigns exception survives only as a remnant of a bygone constitutional era—’the kind of doctrinal dinosaur or legal last-man-standing’ against which” the general rule that the Supreme Court should follow past precedents “carries no force.”

Gunning for Gorsuch

This doctrinal anachronism may be enough to secure the four liberal justices’ votes, but Team Gamble devotes a major chunk of their brief to historical arguments that appear to be directed specifically at Gorsuch.


Gorsuch identifies with originalism — the belief that the Constitution may only be read as it would have originally been understood by the men who drafted it and their contemporaries. So Gamble’s brief argues at length that the separate sovereigns doctrine is “at war with the original meaning of the Double Jeopardy Clause.”

It cites a 1775 court case stating that a man who was acquitted of a crime in Spain could not be tried for the same crime in England, and similar case holding that a man who “had been already acquitted of the charge by the law of Portugal . . . could not be tried again for it in England.” The rule that acquittal in one nation’s court precludes conviction in another, according to Team Gamble, stretches at least as far back as a 1662 decision holding that a person acquitted in Welsh court could not be charged with the same crime in English court. And Gamble’s brief bolsters this claim with citations to centuries-old English treatises stating 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.”

So will that be enough to get Gorsuch’s vote? In a civil matter, Gorsuch eagerly placed erroneous precedents ahead of text and history when those precedents undermine workers’ rights. In a major Fourth Amendment case decided last term, Gorsuch seemed to flirt with the idea that police shouldn’t be able to gather certain cell phone data without a warrant — but ultimately came out in favor of a Fourth Amendment regime which would give state legislatures significant power to shrink criminal defendants’ rights.

Nevertheless, Gorsuch does appear to be more sympathetic to the pleas of criminal defendants than he is to civil plaintiffs. Last month, Gorsuch teamed up with Justice Sonia Sotomayor, the Court’s leading criminal justice reformer, to rail against a lower court decision preventing a woman from interrogating a lab tech who determined that she was driving while intoxicated. At an oral argument a little over a week later, Gorsuch appeared eager to rein in states’ power to seize assets from people convicted of minor crimes.

So, on a Court dominated by very conservative judges, criminal justice advocates are not wrong to think that Gorsuch may be their best shot at a fifth vote.