The Supreme Court spent its morning smacking around a lawyer for pandering to Gorsuch

Turns out, no one gives a damn about originalism.

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

Terance Gamble’s lawyers appeared to walk into the Supreme Court Thursday morning with a single goal in mind — lock down Neil Gorsuch’s vote. They will probably succeed in that goal.

Yet, in their single-minded pursuit of one of the Court’s most idiosyncratic members, Team Gamble is likely to see a Pyrrhic victory. As attorney Louis Chaiten repeatedly parroted originalist arguments that seemed tailor made for Gorsuch, he seemed oblivious to the fact that he was losing the rest of the bench. It turns out that most of the Supreme Court cares a whole lot more about what impact their decision could have in 2018 than they do about a 1662 decision involving separate prosecutions in English and Welsh courts.

There’s a lesson for future Supreme Court advocates here. In your zeal to assemble unlikely coalitions between liberal and conservative members of the Court, don’t take the liberals for granted. If you do, you risk tanking an eminently winnable case.

Separate sovereigns

The tragedy of Gamble v. United States is that it involves a very real injustice. Mr. Gamble was convicted of being a felon in possession of a firearm by federal and state courts. Gamble was punished by the state of Alabama and sentenced to an additional 46 months in federal prison. His lawyers argue that this double sentencing violates the Constitution’s command that no one shall “be subject for the same offense to be twice put in jeopardy of life or limb.”


The problem with this argument is that it is utterly at odds with precedent (although there is some debate about whether the doctrine at issue in Gamble is 70 years-old or more like 170 years-old). Under the Supreme Court’s “separate sovereigns” doctrine, each of the states and the federal government are all “capable of dealing with the same subject-matter within the same territory.”

So it violates the Double Jeopardy Clause for the federal government to prosecute Gamble twice for the same offense. And it violates the same clause if Alabama prosecutes him twice. But each is allowed its own crack at convicting and punishing him.

“Any country in the world”

Gamble’s brief fixates on claims that the separate sovereigns doctrine violates the original understanding of the Constitution. It cites 17th and 18th century court cases holding that a court in England could not convict someone who was already tried in Wales or Portugal, as well as treatises that are about the same age as the Constitution itself.

Similarly, when Attorney Chaiten steps up to the Supreme Court podium to make his argument, he leans hard into these originalist arguments, labeling the separate sovereigns doctrine inconsistent with the Constitution’s text and with its original meaning.

If the Supreme Court had five Gorsuches, this would be a sensible tactic. Gorsuch, at the very least, claims to believe that the Constitution should be interpreted solely as it was originally understood. And, while Gorsuch did ask a few skeptical questions of Chaiten, he appeared likely to vote for Mr. Gamble by the end of Thursday’s argument.


But Chaiten’s strategy left seven other members of the Court in the dark (Justice Clarence Thomas, as is his ordinary practice, did not speak during the argument).

Not long after Chaiten took the podium, Justice Ruth Bader Ginsburg asks if Chaiten’s proposed rule would permit “any country in the world” to frustrate an American prosecution. Chaiten responds that American courts would not need to honor “sham” or “collusive” prosecutions that took place in a foreign nation (or in another state), but that doesn’t avoid a closely related problem

What if terrorists “murder Americans abroad,” Justice Samuel Alito asks, yet are not convicted because of an inept foreign prosecutor? Should that prevent American courts from hearing this case? Building off Alito’s hypothetical, Brett Kavanaugh worries that Chaiten’s rule would “substantially hamper . . . national security.”

Many of Chaiten’s responses to these questions are as monotonous as they are tone deaf. His response to Alito, for example, begins with the words “under the original understanding…”

“This is a 170-year-old rule!”

Meanwhile, several other justices raised a different, equally troubling problem with Chaiten’s claims. “This is a 170-year-old rule!” Justice Elena Kagan declares. The doctrine of stare decisis, which provides that courts generally should follow past precedents, is a “doctrine of humility.” The Court should not toss out old rules simply because its current members think “we can do it better.”


This concern is echoed by Kavanaugh — who suggests that past precedents should only be overruled when they are “egregiously” reasoned — and by Justice Stephen Breyer. Even Justice Sonia Sotomayor, ordinarily the Court’s most outspoken proponent of criminal justice reform, appears bothered by Chaiten’s call to overrule longstanding precedent.

“Do you have any current case?” that supports your understanding of the centuries-old English rule, Sotomayor asks the flailing lawyer at one point.

Indeed, Gorsuch himself seemed frustrated by Chaiten’s unwillingness to address his colleagues’ practical concerns. “Of all the errors this court has made over the years,” he asks near the end of Chaiten’s argument, “why should we care about this one?” It appears that Gorsuch, who is typically very eager to overrule past precedents, isn’t willing to abandon stare decisis in its entirety.

All of the Court’s frustrations come to a head when Chaiten’s time at the podium is running out. “Your argument” is “one note,” Justice Kagan tells Chaiten in an unusually candid exchange. Yes, there are members of the Court who think that originalism is the “alpha and omega” of constitutional interpretation, but most of them do not. So maybe Chaiten would like to take a few minutes to address the concerns of those justices as well?

Kagan is, at once, the Court’s master strategist on the left and one of the Court’s savviest political thinkers. In a public appearance last September, she warned that it is “incumbent” upon the Court to be aware of its own limited political capital, and “to not do the things that where people will reject the Court and say, you know, we don’t view it as legitimate anymore.” She called upon her colleagues to take “big questions and make them small” — an approach that would also prevent a Court dominated by conservatives from shoving the law too far to the right.

Justice Kagan is, in other words, a kind of anti-Gorsuch. While Gorsuch’s originalism pulls him toward massive, sweeping changes to the law, Kagan speaks the language of modesty and restraint. Her suggestion to Chaiten this morning was not simply a warning to lawyers advocating before her bench, it was likely also an appeal to justices, such as Chief Justice John Roberts, who often speak a similar language.

And Kagan’s words were also an expression of power. Originalism may be hip in Federalist Society circles. But it was clear on Thursday that more modest arguments still hold considerable sway in the Supreme Court of the United States.

Yet, while the Gamble argument suggests that the Court will not go running off every single cliff that a 400-year-old document tells them to leap from, the case is likely to have a very sad ending for Mr. Gamble. Several members of the Court seemed very sympathetic to Gamble’s plight. Justice Ginsburg noted that the separate sovereigns doctrine has been “widely criticized.” Justice Breyer suggested that he was convinced by Justice Hugo Black’s dissent in a previous separate sovereigns case. Gorsuch grilled Justice Department attorney Eric Feigin, as Feigin sought to defend the existing rule.

It is very unusual for the Supreme Court to hear a case that is clearly controlled by a longstanding doctrine. The mere fact that the Court agreed to hear this case suggests that a majority of the Court is open to claims that the separate sovereigns doctrine should be overruled.

But, at the end of the day, Mr. Gamble’s lawyers gave the Court very little to work with. They placed fashionable arguments ahead of the more practical concerns felt by most of the Court. And it is likely that their client will pay the price for that decision.