Supreme Court Appears Poised to Uphold “Separate Sovereigns” Doctrine

In oral argument today on Gamble v. United States, a majority of justices were critical of an appeal seeking to overturn the “separate sovereigns” doctrine exception to the Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution, a case previously reported in FEDagent.

While the Double Jeopardy Clause prohibits prosecuting a defendant for the same crime twice, the Supreme Court in 1847 created the “separate sovereigns” exception. The Court reasoned at that time that the Fifth Amendment restrained only the federal government, and thus the states were not prohibited from prosecuting defendants for the same or similar offenses for which they were prosecuted by the federal government, and vice versa.

In their petition for certiorari to the Supreme Court, attorneys for Terance Gamble argued that “doctrinal underpinnings” of the “separate sovereigns” exception was “eroded” by passage of the Fourteenth Amendment, which applied the Bill of Rights to the states in 1868. And, as noted in Gamble’s petition, both Justice Ruth Bader-Ginsburg and Justice Clarence Thomas have previously called for “fresh examination” of the exception.

Because foreign governments may also be a “separate sovereign,” Chief Justice John Roberts and Justice Samuel Alito were critical of Gamble’s argument. Justice Alito asked a hypothetical scenario in which terrorists murdered American tourists in a foreign country and were acquitted there. Would eliminating the “separate sovereigns” exception, he asked, preclude the United States from prosecuting those terrorists for murder? Gamble’s attorney argued the Court need not answer Justice Alito’s question in Gamble’s case, which involved the “separate sovereign” of Alabama. Justice Brett Kavanaugh resisted the attorney’s suggestion, stating that Gamble’s position would necessarily extend to foreign prosecutions. Justice Elena Kagan agreed.

Justice Stephen Breyer then re-focused on domestic concerns with Gamble’s argument, suggesting that Gamble’s position could harm the federal government’s ability to prosecute federal civil-rights cases and domestic violence among Indian tribes.

Justice Neil Gorsuch was the only justice to speak seemingly on the side of the prior statements from Justices Ginsburg and Thomas. Amidst questions for government counsel about federalism, by which power is divided between the federal and state governments, Justice Gorsuch said he couldn’t think of another case in which federalism was used to justify more intrusions by the government into people’s lives, rather than to protect against such intrusions.

From these arguments, it appears the majority of justices are poised to affirm the “separate sovereigns” exception over the objections of Justices Ginsburg, Thomas, and Gorsuch.

The parties’ briefs to the Supreme Court in Gamble v. United States are posted here. FEDagent will post an update when the Supreme Court decides the case. A decision is expected next year.


This case law update was written by James P. Garay Heelan, Associate Attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

Posted in Case Law Update

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