For The Love of Stare Decisis

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.

20 thoughts on “For The Love of Stare Decisis

  1. Skink

    These are extremely well-reasoned opinions. The majority roams antiquity, finding nothing in decisions to disallow subsequent prosecutions because “offences” belong to the sovereigns. The dissents, particularly Ginsburg’s, reason that an offense is an offense and double jeopardy applies. Thomas rides the center rail–“we get this wrong all the time.”

    The majority’s opinion doesn’t so much lean on prior decisions to support dual sovereigns as much as it combs the history and finds no decisions prohibiting the doctrine. Both Thomas and the dissents essentially say, “making precedent is our job.”

    The thing that strikes me is that this version of the Court is very intent on staying in its lane of authority. How to do that is much more nuanced that some previous versions. The difference is very narrow, and like all close theoretical divisions, gets slightly tighter and looser in application, depending on the issue. It also changes players and positions. That’s just how close theoretical argument acts.

    This would come as a great surprise to the “conservative v. liberal” folks, but only if they have the willingness to see through the film on their eyes. They don’t.

    1. SHG Post author

      The majority “combs” the history because the appellant made a strong case, and it worked hard to knock it down. Whether “offence” refers to the element of the crime or the conduct engaged in is the textualist’s question. The latter had the better argument, but then stare decisis.

    2. Richard Kopf


      Well put. I am far too often critical of the Justices. You, on the other hand, strike the correct balance here. All of them try hard “to stay in their lanes of authority.” For those who enjoy sophisticated thought well articulated, the Gamble decision and the concurring and dissenting opinions, are a joy to read.

      Who knew a one-eyed, swimming cap wearing and roadkill eating, denizen of a swamp, was a very wise lawyer? Well, damn it, I did.

      All the best.


  2. Richard Kopf


    What is really at stake regarding the doctrine of precedent at the Supreme Court (and here we are speaking of the Court only and not the lower courts) is the doing away with a venerable method of legal reasoning. Those Justices, like Thomas or Gorsuch, believe that common law reasoning is too lax when it comes to understanding the Constitution. The proponents of the idea that precedent ought not mean much for Supreme Court Justices double down on a fairly goofy idea.

    The Constitution, so it is argued, should be understood by looking to the “original public meaning” of the words used in the Constitution at the time, and only at the time, the words were written. In effect, this means Supreme Court Justices ought to consider themselves historians.

    Oddly, these fake historians resort heavily on dictionaries (rather than say the voluminous papers of George Washington) despite the fact that the idea of dictionaries was then a rather new endeavor. Moreover, there were a numerous dictionaries at the time, and they frequently were of poor quality.

    Ironically, the writer of the most famous dictionary of the times introduced his master work with a caution. No dictionary he wrote could “embalm” language just as no person could “clear the world at once from folly . . . .” Samuel Johnson, Preface to A Dictionary of the English Language (London, 1755).

    To the trained historians, this whole endeavor is laughable. The “original public meaning” Justices might as well call themselves plumbers even though none of them have ever freed up a clogged toilet. But I intend no humor or disrespect. At its core, the debate is about how best to preserve the legitimacy of the Supreme Court in a democratic republic.

    All the best.


    1. SHG Post author

      While I agree with you as a general proposition, I’ve become increasingly troubled as I’ve watched key words morph into vagaries or new, wholly different definitions than they had at the time they were used in statutes.

      As we’re both painfully aware, words at best are a very blunt instrument to convey an idea. At worst, they’re too easily manipulated to produce entirely unintended meanings by linguistic revolutionaries. So while I don’t put much stock in Supreme Court historians, I don’t put much stock in the kids defining words at Urban Dictionary either.

      1. Richard Kopf

        Me too re the new found elasticity of words by the woke.

        And that’s why it’s good enough to be a lawyer who does what lawyers do even when one ascends the Supreme Court bench both literally and figuratively.

        All the best.


    2. Skink

      “The Constitution, so it is argued, should be understood by looking to the “original public meaning” of the words used in the Constitution at the time, and only at the time, the words were written. In effect, this means Supreme Court Justices ought to consider themselves historians.”

      Rich–you’re right, for some it’s the words. A minor digression.

      I’ve argued constitutional issues a zillion times. It didn’t take long to recognize that after a constitutional issue was “settled,” a creep of acceptance overcame the districts. The precedent said X, so that was that. There was no longer a discussion directed to why it was X; it was just X. I hated that because it reduces law to regurgitation, so I started every written argument with why the provision or statute was created. What evil did it solve? Why does it exist? I felt much smarter.

      A couple years into this practice, I found myself arguing the Innkeeper’s favorite foil–qualified immunity–to a DC. I was asked, “Mr. Skink, why are immunities different under Swamp law as opposed to federal law?” I said, “separate sovereigns.” “I know that,” was the retort, “but how did they get there?” I found someone who understood!

      These opinions, like the vast preponderance, are short on “why this is in there.” Centuries of precedent are discussed; the old meaning of words are too, but there is little as to why. The Articles had little in the way of personal rights. Why was it so important that DJ get a clause? There’s no historical shortage of abuse where there was no DJ protection, but I guess it’s impertinent. Isn’t the why more important than the words?

      1. Richard Kopf


        I ask the “how did it get there” question when I really want to pimp a lawyer. It is great fun, particularly when I know the answer.

        And, yes, the “why” is more important than the words. Indeed, that is one of the reasons why I think originalism is a tool to be used rather than a Commandment to be worshiped.

        All the best.


        1. SHG Post author

          I wonder if there’s a song “You’re all full of shit” I could hum while I write this reply? I have a favorite saying, “remember the rubric, forget the rationale,” for when judges string cite the platitudes out of the headnotes without demonstrating any awareness of how or why that black letter law got there. My obviously limited experience is that judges ask why when serves their purpose and copy and paste the string cite when it doesn’t.

          Of course it’s a tool, but only if one uses it and uses it well. And if the tool produces something unpleasing, there are plenty of other tools in the box as well. As my spirit animal Nino wrote in his book, Reading Law, there’s a rule of construction that will let you do anything, if you want to.

          1. Richard Kopf


            Indeed. My stock in trade is being full of shit. After all, it is the duty of third tier toilets to get the widgets out the door.

            All the best.


            1. SHG Post author

              It wasn’t meant to be taken quite so personally, Judge. All of our stock in trade is being full of shit. It’s a janitor’s duty.

            2. Casual Lurker

              “It’s a janitor’s duty.”

              Hello Maintenance? We have a Code Brown in the Research wing, stat!

  3. Skink

    “Whether “offence” refers to the element of the crime or the conduct engaged in is the textualist’s question.”

    Nope. Elements and conduct don’t really matter to the majority. Assuming the elements are the same, or different, there is no “same offence” with different sovereigns, so DJ never applies. Staying in their lane, they find this an issue for Congress and the states–one that can be fixed by legislation.

  4. B. McLeod

    Like everything else, the Court follows this doctrine when a majority of the justices want to, and ignores the doctrine when a majority of the justices want to. When it stands in the way of a perceived urgent need to super-legislate societal changes, stare decisis has to go.

  5. Pedantic Grammar Police

    When the Rodney King-beaters were reprosecuted after acquittal, I thought it was great because I liked the end result. My dad thought it was bullshit, and eventually I came to agree with him. I’m not a lawyer, and neither is he, but we can read, and the amendment is clearly written:

    “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb”

    The “separate sovereigns” doctrine stinks of “some animals are more equal than others.” This is a fence that should be torn down. It probably won’t be, because the Supremes are inclined to perform any necessary contortion to keep the bad guys from winning. Stare decis is another tool in the “no criminal may escape ‘justice'” toolbox.

    1. Richard Kopf


      While I am not a particular fan ’cause I distrust the states more than the feds, there is the small matter of federalism to consider. Like it or not we are a republic. Part of the Court’s job is to ensure that we remain so.

      By the way, from where I sit, there is no “criminal may escape ‘justice'” toolbox. Mostly, there are just criminals. But, I admit, that’s just me being me.

      All the best.


      1. Guitardave

        Thank you judge. If someone ever calls me a criminal, I can snap back. ” I’ve been called that by better men than you…so there!”…and not be lying. Cool.

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