The first time I recall being made aware that a state and the U.S. could both charge a citizen based on the same act was during the Rodney King Ethics Train Wreck, when after the jury acquitted the LA cops involved and the riots ensued, the Justice Department charged them with violating King’s civil rights. They were convicted, and sent to prison. That sure seemed like double jeopardy to me [See: the Fifth Amendment to the United States Constitution, which provides in part: “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb….]  and I wondered why the Supreme Court allowed it.

Why has remained a good question, but when is clear: in 1876, the Court ruled in United States v. Cruikshank that the government of the United States is a separate sovereign from any State:

This does not, however, necessarily imply that the two governments possess powers in common, or bring them into conflict with each other. It is the natural consequence of a citizenship which owes allegiance to two sovereignties, and claims protection from both. The citizen cannot complain, because he has voluntarily submitted himself to such a form of government. He owes allegiance to the two departments, so to speak, and within their respective spheres must pay the penalties which each exacts for disobedience to its laws. In return, he can demand protection from each within its own jurisdiction.

Thus the bizarre construct known as the dual sovereignty rule was born. It means that double jeopardy doesn’t apply when a state and the nation try the same individual for the same criminal act. It seems unfair, because it is unfair. It is, however, old.

Thus it was that yesterday, given the perfect opportunity to over-rule this inherently unethical exception to the common law principle that predated the existence of any U.S. state, the current Supreme Court whiffed.

In Gamble v. United States,  7-2 decision majority ruled against Terance Gamble, who  charged and sentenced for  being a felon in possession of a firearm by both the federal government and the state of Alabama. Justice  Alito wrote the majority opinion, joined by Chief Justice  Roberts, Justice Thomas, Justice  Breyer, Justice Sotomayor, Justice  Kagan and Justice Kavanaugh. Justices Ruth Bader Ginsburg and Neil M. Gorsuch dissented.

How is this possible? Once again, two words, in Latin: stare decisis. As longtime SCOTUS tradition almost-but-not-quite-always dictates, the Court will not normally overturn a decision of long-standing, even if they might objectively believe the ruling was wrong. The idea is to give U.S. laws stability, and not allow the fluctuations of judicial philosophy on the Court to lead to wholesale overhauls of U.S. law with each new nomination and confirmation.

Gamble, a convicted felon, was pulled over for a broken taillight in November 2015, Police  found marijuana and a handgun in his car, Gamble was convicted under Alabama law of possessing of a firearm  while a felon. During the Alabama prosecution, Gamble was also charged under federal law for the same offense, being a felon in possession of a firearm.  He entered a conditional guilty plea that reserved his right to raise the double jeopardy issue on appeal, and received a four-year sentence. In appealing the federal conviction,  Gamble’s lawyers contended the dual-sovereignty doctrine should be overruled because it departs from founding-era understanding.

Alito brushed the argument aside, writing, “But the historical evidence assembled by Gamble is feeble; pointing the other way are the clause’s text, other historical evidence, and 170 years of precedent. Today we affirm that precedent.”

Shorter version: Stare decisis!

Ginsburg’s dissent points out that the dual sovereigns doctrine ignores a basic tenet of the federal system. “States may be separate, but their populations are part of the people composing the United States,” she said.. Justice  Gorsuch protested  that  the dual sovereigns loop-hole  “finds no meaningful support in the text of the Constitution, its original public meaning, structure, or history.”

Once again, law, for arguably sound procedural and practical reasons,  grinds ethics under its boot.

Supporters of another bad but old decision, Roe v. Wade should be thrilled with the Gamble decision, however.  The 7-2 count appears to signal that stare decisus is alive and well, and has across-the-ideological-spectrum support on the current Court. Interestingly, Clarence Thomas issued a provocative concurring opinion to separate his vote from support of the stare decisis doctrine. Thomas argued that it should not be used to uphold precedents that are “demonstrably erroneous.”

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Pointer and Source: ABA Journal