There are many reason for the Supreme Court to adhere to its prior decisions, even when, as in Gamble v. United States, there are many reasons to reject the past and leave it behind. We need stability in the law so we know how to conduct ourselves and our affairs. We need humility in the Court, so that a shift of a justice or two doesn’t reverse the opinions of their predecessors, similarly wise, merely because they disagree. We need to accept the integrity of the Court’s decision-making process, that it doesn’t blow in the wind as popular views ebb and flow.
We need stare decisis.
But then, when a decision is wrong, we need change as well.
Stare decisis “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Payne v. Tennessee, 501 U. S. 808, 827 (1991). Of course, it is also important to be right, especially on constitutional matters, where Congress cannot override our errors by ordinary legislation. But even in constitutional cases, a departure from precedent “demands special justification.” Arizona v. Rumsey, 467 U. S. 203, 212 (1984). This means that something more than “ambiguous historical evidence” is required before we will “flatly overrule a number of major decisions of this Court.” Welch v. Texas Dept. of Highways and Public Transp., 483 U. S. 468, 479 (1987). And the strength of the case for adhering to such decisions grows in proportion to their “antiquity.” Montejo v. Louisiana, 556 U. S. 778, 792 (2009).
When constitutional law has been around forever, it becomes so deeply embedded in our jurisprudence, our laws, collateral decisions and society that it can be nearly impossible to change. As the Court notes, stare decisis “grows in proportion to…’antiquity.'” For many, the age of a view is hardly a good reason to adhere to it; indeed, it may be a good reason to reconsider it. Stability takes a backseat to correctness, and correctness is a product of current sensibilities, where a choice between options had to be made and was, despite there being good arguments either way.
Then there are others time when the choice is so overwhelmly wrong that no amount of stability or humility can save it. Brown v. Board of Education was such a case.
At issue in Gamble was the doctrine of dual sovereignty, that we are subject to a state and a federal sovereign, each of which is empowered to enact laws which, if found to be violated, will result in punishment. But what about double jeopardy? That only applies to one sovereign at a time, such that the other gets its own shot, even if it’s for the same conduct, the same crime, the same . . . everything. When the sovereigns are different, there is no double jeopardy.
While the prohibition against double jeopardy is expressly stated in the Fifth Amendment, the doctrine of dual sovereignty is quite an antique. It wasn’t as much of a concern when federal criminal law tended not to overlap with state criminal law, but as the former ballooned and duplicated that latter, the potential for mischief became manifest.
On the “bright” side, it allowed for prosecution of cops for violating civil rights, even after acquittal for the underlying crime. On the “dark” side, it allowed for someone like Gamble to be prosecuted as a felon in possession of a firearm in violation of both state and federal law, and be subject to increased sentence for the same conduct by the second sovereign.
The majority parsed the word “offence,” trivialized the common law history of double jeopardy and fell back on the doctrine of stare decisis. Justice Neil Gorsuch, in dissent, cut to the chase:
Viewed from the perspective of an ordinary reader of the Fifth Amendment, whether at the time of its adoption or in our own time, none of this can come as a surprise. Imagine trying to explain the Court’s separate sovereigns rule to a criminal defendant, then or now. Yes, you were sentenced to state prison for being a felon in possession of a firearm. And don’t worry—the State can’t prosecute you again. But a federal prosecutor can send you to prison again for exactly the same thing. What’s more, that federal prosecutor may work hand-in-hand with the same state prosecutor who already went after you. They can share evidence and discuss what worked and what didn’t the first time around. And the federal prosecutor can pursue you even if you were acquitted in the state case. None of that offends the Constitution’s plain words protecting a person from being placed “twice . . . in jeopardy of life or limb” for “the same offence.” Really?
What ups the ante here is that stare decisis has become a battleground concept in the gender war, as it serves as the primary doctrine protecting Roe v. Wade and Casey v. Planned Parenthood from reversal by a Supreme Court that’s believed to be inclined to reverse its precedents. As the Wandering Prawf lamented:
I wish debates over stare decisis could be had exclusively between those with strong feelings about it today and versions of themselves from an alternate reality where Trump lost in 2016.
Is the passion of one’s feelings toward stare decisis grounded in the intellectually honest view that a doctrine is legally erroneous, or that it allows you to argue to preserve law you like and get rid of law you don’t?
The dual sovereign doctrine upheld in Gamble, despite the history of double jeopardy and the facial question of whether it was intended by the founders to allow the prosecution of a person until the sovereign, either of them, gets the outcome it desires, puts the doctrine of stare decisis in the crosshairs.
Many of the same people who would otherwise argue that dual sovereignty is bad law, is unworkable now that federal criminal law has exploded and replicated state criminal law, can’t bring themselves to push for reversal because that would put stare decisis in jeopardy, and they care far more about preserving other precedent pereceived to be at risk than twice prosecuting Terance Gamble.