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On this day in Supreme Court History—February 18, 1988: Justice Anthony Kennedy Takes the Oath of Office

On this day in 1988, Justice Anthony Kennedy was sworn in as the 104th Justice of the Supreme Court.

President Ronald Reagan nominated Kennedy as an Associate Justice on November 12, 1987. Kennedy was Reagan’s third attempt to fill the seat of Justice Lewis Powell, who had retired the previous June. Reagan’s first two nominations failed: Judge Robert Bork was rejected by the Senate; and then Douglas Ginsburg withdrew his name from consideration after revelations involving his use of marijuana. In nominating Kennedy, Reagan said that Kennedy, who had been serving on the U.S. Court of Appeals for the Ninth Circuit since 1975, ”seems to be popular with many senators of varying political persuasions.” Reagan’s assessment proved correct. The Senate confirmed Kennedy by a vote of 97-0 on November 30, 1987.

On February 18, 1988, Chief Justice William Rehnquist administered the judicial oath (required of all federal judges) to Justice Kennedy in the Supreme Court chamber. Justice Kennedy then took his seat on the far right side of the bench, reserved for the most junior member of the Court. Later that day, the Chief Justice gave Justice Kennedy his Constitutional Oath of Office (required of all federal employees) at a White House ceremony.

At the White House ceremony, Reagan gave a brief speech, after which Rehnquist gave brief remarks thanking the president for holding the ceremony at the White House. After Rehnquist administered the oath, Justice Kennedy gave a speech thanking the President and the Chief Justice. “The presidency, the Congress, and the courts,” Kennedy said, “are committed to the constitution and to the rule of law, and to the heritage of freedom.” In his concluding remarks, Reagan said that Kennedy’s career, like that of Justice Powell’s, “has been marked by his devotion to a simple, straightforward, and enduring principle: that we are a government of laws, not of men.”

Kennedy served on the Court until his retirement on July 31, 2018.

This Post Was Written by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, edited by ISCOTUS Editorial Coordinator Matthew Webber, Chicago-Kent Class of 2019, and ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.


On this day in Supreme Court History—February 15, 1932: Benjamin Cardozo Nominated to the Supreme Court

On this day in 1932, President Herbert Hoover nominated Benjamin Cardozo to the Supreme Court.

Hoover, a Republican, nominated Cardozo, a Democrat, to replace Oliver Wendell Holmes, Jr., who had retired at age 90. Although Cardozo was a Democrat, he had support from across the political spectrum. Cardozo had served for 18 years on the New York Court of Appeals, first as an Associate Judge and then as Chief Judge, and his reputation had grown nationwide. Cardozo had written several respected books, including his 1921 classic The Nature of the Judicial Process. He had also received honorary degrees from numerous universities, including Harvard, Yale and Colombia, his alma mater, where he entered the undergraduate school at age 15, graduated at the top of his class, and then attended, but did not graduate from, the law school.

Although the brilliant jurist had few critics, some felt Hoover could have been more strategic in his nomination. Cardozo was from New York, and two other New Yorkers—Harlan Fiske Stone and Charles Evans Hughes—were already on the Court. Justice Louis Brandeis, the first Jewish justice, was still on the Court.

Yet Cardozo had two powerful Republican Senators on his side: William Borah of Idaho, chairman of the Foreign Relation Committee, and George Norris of Nebraska.

Hoover talked to Borah the day before his announcement. The President showed Borah a list of potential nominees in descending order of Hoover’s preference. Hoover had misspelled Cardozo’s name at the bottom, along with the three qualities that he considered strikes against him: “Cardoza [sic] –Jew, Democrat, New York.” Borah glanced at it, and, believing Cardozo should be at the top, told Hoover, “Your list is alright, but you handed it to me upside down.”

Borah reportedly told Hoover, “Cardozo belongs as much to Idaho as to New York,” and “geography should no more bar the judge than the presence of two Virginians—John Blair and Bushrod Washington—should have kept President Adams from naming John Marshall to be Chief Justice.”  As for Cardozo’s being a Jew, Borah reportedly told Hoover, “Anyone who raises the question of race is unfit to advise you concerning so important a matter.”

The Senate Judiciary Committee unanimously approved Cardozo’s nomination on February 20, and the full Senate unanimously confirmed his nomination by voice vote, without debate or roll call, four days later.

Two days after his confirmation, Cardozo sent a handwritten note to Justice Holmes: “I know, of course, that I can never fill your place, but if fills me with pride and joy to be told that you are satisfied to have me there.”

Justice Cardozo took his oath of office March 14, 1932. He served until July 9, 1938.

This Post Was Written by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, edited by ISCOTUS Editorial Coordinator Matthew Webber, Chicago-Kent Class of 2019, and ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.


Court Stays Louisiana Abortion Law

A Louisiana law, the Unsafe Abortion Protection Act (Act 620), has been blocked by the Supreme Court. Passed in 2014, the law would prohibit a physician from performing an abortion if the physician was not admitted to practice at a hospital within 30 miles of the location at which the abortion is performed. Two Louisiana physicians filed an emergency stay request to prevent the law from taking effect. Critics of the law provide that this would leave the state, which has nearly a million women of reproductive age, with only one doctor in a single clinic eligible to perform abortions.

Act 620 has been blocked since its enactment and is nearly identical to a Texas law which the Court struck down in Whole Woman’s Health v. Hellerstedt on a vote of 5-3. In the decision, the Court held the Texas law “provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions, and constitutes an ‘undue burden’ on their constitutional right to do so.” Justice Kennedy sided with the liberal justices on the bench to cast the critical fifth vote.

A panel of the U.S. Court of Appeals for the 5th Circuit upheld the Louisiana law on a 2-1 vote. The full court, which is considered one of the most conservative of the appeals courts, voted not to reconsider the decision of the panel on a 9-6 vote. Four of the nine judges who case the vote to allow the panel’s opinion have been appointed by President Trump. In distinguishing this law from Hellerstedt, the panel reasoned that a majority of abortion providers in Louisiana did not make a “good faith” effort to obtain admitting privileges, which are easier to obtain in Louisiana than in Texas. One of the dissenting judges stated the judges in the majority relied on “strength in numbers rather than sound legal principles to reach their desired result in this specific case.”

The Supreme Court, in a 5-4 vote, granted the stay with Chief Justice John Roberts siding with the Court’s liberals. However, as CNN Reports, the order will not prevent the Court from possibly taking up the case in the future. In dissent, Justice Kavanaugh argued that the stay is premature and unnecessary, as the law had a built-in 45 day “transition” period to see the law’s impact.

Check out The Washington Times, Fox News, NBC News, and The Washington Post for more information on the order.

This post was written by ISCOTUS Fellow James O’Brien, Chicago-Kent Class of 2021, edited by Matthew Webber, ISCOTUS Editorial Coordinator, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director Carolyn Shapiro.


Oral Argument Analysis for January 16, 2019—Ripeness, Takings, & Alcohol Regulation

           The Court heard oral arguments in two cases on Wednesday, January 16, 2019. First up was Knick v. Township of Scott, Pennsylvania, in which the Court is being asked to decide two questions: (1) whether to uphold the ripeness doctrine of Williamson County Regional Planning Commission v. Hamilton Bank (a rule that property owners must exhaust their state court options to ripen a federal takings claim); and (2) whether the Williamson County rule applies to a takings claim asserting that a law is unconstitutional on its face. Petitioner Knick argued that the interpretation of the Fifth Amendment’s Just Compensation Clause should be the same regardless of whether a claim is brought against a local government entity or against the United States in a claim under the Tucker Act.  Respondents countered by noting that permitting all takings plaintiff to go straight to federal court would upset the congressionally created balance of authority between state and federal courts. This is the second time that the Court has heard oral arguments in Knick; the was on October 3, 2018 before the confirmation of Justice Kavanaugh. More coverage on this year’s arguments can be found in this Forbes article and this Daily Caller article.

           The second case argued was Tennessee Wine & Spirits Retailers Association v. Blair, in which the Court is being asked to decide whether states, consistent with the Dormant Commerce Clause, can regulate liquor sales by granting liquor licenses only to individuals or entities that have resided in the state for a specified period of time.

Petitioner Tennessee Wine & Spirits argued that their policy is justified under the Twenty-First Amendment, the 1933 amendment that repealed Prohibition.  The purpose of the Twenty-First Amendment, they argue, was to constitutionalize states’ pre-Prohibition powers, which included the power to discriminate against out-of-state interests. They contested that protectionist policies that might otherwise violate the Dormant Commerce Clause are constitutional because they involve the regulation of alcohol and therefore are justified under the Twenty-First Amendment. Respondents counter that if a statute’s only purpose is to be protectionist of local industries, that statute ought to be considered an unconstitutional discrimination against out-of-state economic interests, and that the Twenty-First Amendment does not immunize this regulation from Dormant Commerce Clause scrutiny. Respondent further argued that Tennessee’s interest in protecting against alcohol can be fully achieved without the durational residency requirements. Coverage of the arguments and the case can be found in this WREG News article, this Forbes article, and this Wine Spectator article. The Jurist also briefly summarizes both cases.

This Article was Written by ISCOTUS Fellow Zoe Arthurson-McColl, Chicago-Kent Class of 2020, edited by ISCOTUS Editorial Coordinator Matthew Webber, Chicago-Kent Class of 2019, and ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.

Oral Argument Analysis for January 15—Defendant Removal & Rule-Making Authority

On January 15, the Court heard oral arguments for two cases: Home Depot v Jackson and Azar v. Allina Health Services. Justice Ginsburg is recovering from lung cancer surgery she underwent last month and was not in attendance.

In Home Depot, Citibank sued George Jackson in North Carolina state court for debt collection. Jackson then brought a counterclaim against Citibank but also added third-party class action claims against Home Depot and Carolina Water Systems, Inc. (CWS). Jackson’s counterclaim asserted that Citibank, Home Depot, and CWS were misleading customers about their water treatment systems and financing thereof.

When Citibank dismissed its original claim against Jackson, Home Depot petitioned to remove its counterclaim to federal court under the Class Action Fairness Act of 2005. But then the federal district court granted Jackson’s request to remand the case back to state court, on the basis that since Home Depot was not technically a defendant, it could not remove the case to federal court. Meanwhile, Jackson dropped his counterclaim against Citibank, eliminating them from the case. Home Depot and CWS appealed the district court’s decision to remand to state court to the Court of Appeals for the Fourth Circuit. Home Depot based its appeal on two arguments: that the term “defendant” should be read to allow third-party defendant’s to remove a case from state to federal court; and that since Citibank was no longer a defendant, Home Depot should be recognized as the “defendant” rather than a “third-party defendant.” The Fourth Circuit affirmed the district court ruling, and Home Depot petitioned the Supreme Court for a writ of certiorari, which the Court granted.

Oral arguments revealed a Supreme Court with mixed opinions on the case. Justice Kagan indicated disagreement with Home Depot’s argument. She went so far as to state that the plaintiff’s complaint doesn’t have any claims that belong in federal court and questioned the authority of Home Depot to remove under 28 U.S. Code § 1441 (a). Justices Sotomayor and Breyer echoed Kagan’s comments. But Chief Justice Roberts and Justice Alito seemed to lean in the other direction, pressing Jackson’s counsel. “But in the ordinary sense of the term are they not defendants?” Alito asked, adding, “They are some kind of defendants.”

Audio of the oral arguments is available here; a transcript can be accessed here.

In Azar, the Court is asked to determine whether or not the Department of Health and Human Services (HHS) erred by not providing public notice and comment on a rule change which altered the calculations used in Medicare reimbursement payments. Medicare, which helps provide Americans over age 64 with health insurance, is divided into several parts. They inclue Part A, in which the government directly administers health insurance to enrollees, and Part C, in which the government subsidizes enrollees to obtain private insurance plans. HHS issued a rule that provided that Medicare Part C enrollees are entitled to benefits under Part A. After the United States Court of Appeals for the District of Columbia ruled that an opportunity for public notice and comment was required before issuing such a rule. the Court granted petition for writ of certiorari by HHS Secretary Alex Azar.

Justices Kagan, Sotomayor, and Gorsuch questioned the government’s interpretation of statutory language regarding substantive changes and public notice and comment requirements. Justices Breyer and Gorsuch pointed out that the legislative history of the Medicare Act is “confused.” HHS pointed to the negative consequences for the agency if it would have to go through the public vetting process for all substantive changes, stating there are “thousands of pages of regulations, but the Court has recognized that [it] can’t answer all questions that come up.” Counsel for Allina and other hospitals dismissed the government’s warnings, arguing that the provision in question would only apply to roughly 35 pages of Medicare manuals.

Justice Kavanaugh has recused himself from the case because he wrote a circuit court decision invalidating the HHS formula.

Audio of the oral arguments is available here; a transcript can be accessed here.

This Post was Written by ISCOTUS Fellow James O’Brien, Chicago-Kent Class of 2021, and edited by ISCOTUS Editorial Coordinator Matthew Webber, Chicago-Kent Class of 2019, and ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.


January 14 Oral Arguments: Tort Immunity and Copyright Litigation Costs

On Monday, January 15th, the Supreme Court heard oral arguments in two cases involving statutory interpretation. Thacker v. Tennessee Valley Authority (TVA) raises the question of whether the TVA is immune from tort liability as a government entity. Gary Thacker and a friend were fishing on the Tennessee River. At the same time, the TVA was attempting to raise a downed power line that was above the part of the river Thacker and his friend was located. An electrical component hit Thacker, severely injuring him, and his friend, killing him instantly.

Thacker attempted to sue TVA, alleging negligence. The TVA Act, which created the TVA,  provides that TVA is a corporate entity that can be sued. However, the district court dismissed Thacker’s suit on the basis of governmental discretionary function immunity. The issue in the case involves whether that immunity is available to the TVA. A discretionary function immunity provision is codified in the the Federal Tort Claims Act of 1946 (FTCA), which allows individuals to sue the federal government for tort liability. But the TVA is not covered by the FTCA. As a result, the issue before the Court involves when and whether to infer such an immunity into the TVA Act. You can read more about the question on Jurist, and the Federalist Society has posted a helpful video explanation.

The second case the court heard, Rimini Street, Inc. v. Oracle USA, Inc., involves the scope of costs that can be awarded to a plaintiff under the Copyright Act. The Court might read the statute to authorize the same relatively narrow set of costs that are taxable in most litigation or a broader set of costs that would “come closer to compensating a party for all of its litigation costs.” You can read more at The National Law Journal.

This post was written by ISCOTUS Fellow Breana Brill, Chicago-Kent Class of 2020, edited by Matthew Webber, ISCOTUS Editorial Coordinator, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director Carolyn Shapiro.


Oral Arguments: Native American Tribal Rights and Copyright Requirements

The Supreme Court delved into the complicated history of the relationships between the federal government and Native American tribes on Tuesday, January 8, in Herrera v. Wyoming. In January 2014, Clayvin Herrera, a member of the Crow Tribe in Montana and a tribe game warden, went hunting to find food to feed his family. He, along with other fellow tribe members, shot and killed three elk on land in the Big Horn National Forest outside of their reservation. In 2015, Herrera was cited by Wyoming authorities for hunting during closed season and without a state license — laws that do not apply on the reservation itself — and was convicted.

Although this incident occurred recently, the validity of Herrera’s conviction depends on whether and how the Supreme Court will choose to enforce an 1868 treaty between the Crow Tribe and the United States, which gave the tribe “the right to hunt on the unoccupied lands of the United States so long as game may be found thereon.” Because the treaty was created in 1868 and Wyoming did not gain statehood until 1890, the first question the Court must answer is whether the treaty survives Wyoming’s statehood. There is case law indicating that the treaty did not survive, but there is subsequent case law calling those holdings into question. If the Court decides that the treaty remains in operation, the next issue is whether the land in the Bighorn National Forest constitutes “the unoccupied lands of the United States.” Check out SCOTUSblog, Time Magazine, Indian Country Today, and  Great Falls Tribune for more information on this case and the arguments presented by both sides.

Also on January 8 the Court considered what someone has to do before filing a copyright infringement lawsuit in Fourth Estate Public Benefit Corp. v., LLC. Although copyright owners do not have to register with the Copyright Office to have rights, registration is a prerequisite to filing an infringement suit. When the plaintiff in this case filed its lawsuit for copyright infringement, it had only filed an application to register its potentially infringed copyrights but the copyright office had not yet registered the claims. Therefore, the issue is whether the registration of a copyright claim is complete when the copyright holder “delivers the required application, fees, and materials to the copyright office” or if it is complete only when the copyright office has approved the application. Check out the Trademark and Copyright Law Blog and World Intellectual Property Review for commentary on how the Court’s decision could impact copyright owners.

This post was written by ISCOTUS Fellow Breana Brill, Chicago-Kent Class of 2021, edited by Matthew Webber, ISCOTUS Editorial Coordinator, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director Carolyn Shapiro.

Oral Argument: Preemption and Mortgage Foreclosures

The Supreme Court began the new year with oral arguments on Monday January 7, 2019. Justice Ginsburg did not join the bench, however, following surgery for cancerous nodules on her lung — the first time she has ever missed oral argument despite a series of health issues over the years. There has been much reporting and discussion about her health, but she is working from home and will participate in deciding the cases.

The first case on Monday was Merck Sharp & Dohme Corp. v. Albrecht, in which the Court is being asked to decide whether the state laws in a failure-to-warn lawsuit are pre-empted by federal law when the Food and Drug Administration (FDA), knowing the relevant scientific data, rejected the drug manufacturer’s proposed warnings, or whether the question of why the FDA rejected the proposed warning should go to a jury. The Third Circuit Court of Appeals found that Merck Sharp & Dohme Corporation, manufacturer of the drug Fosamax, could be liable for failing to warn about a health risk even though they proposed a warning label that the FDA ultimately rejected (click here for some background information on the drug). Lawyers for petitioner Merck Sharp argued that under § 355(o)(4), the Secretary of the FDA has an obligation to discuss proposed changes to drug warnings with manufacturers if they disagree with the phrasing, and cannot reject it without discussions. Respondents’ position was that “brand name drug makers are responsible at all times for keeping their labels up to date.” For more coverage of the arguments, see the Seymour Tribune, ABC News, and The Epoch Times.

The Court then heard arguments in Obduskey v. McCarthy & Holthus LLP, in which the Court is being asked to decide whether the Fair Debt Collection Practices Act (FDCPA) applies to non-judicial foreclosure proceedings (this Chicago Tribune article discusses the differences between judicial and non-judicial foreclosures). Petitioner, a homeowner who found himself dealing with the non-judicial process, takes the position that the FDCPA applies to non-judicial foreclosure proceedings and argued that if Congress had intended for the FDCPA to apply only to judicial foreclosures, then it would have included an express exclusion in the law. Disagreeing about the meaning of the term “debt collector,” respondents argued that non-judicial foreclosure proceedings are not truly debt collection within the meaning of the law. A lot is at stake in the case because a broad opinion in favor of the petitioner could effectively invalidate the laws of more than half the states. This CNBC article and this Westword article have more background on the case.

This post was ritten by ISCOTUS Fellow Zoe Arthurson-McColl, Chicago-Kent Class of 2020, edited by Matthew Webber, ISCOTUS Editorial Coordinator, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director Carolyn Shapiro.


Rethinking the Supreme Court — The Case for Term Limits

In recent months, there has been increasing talk about restructuring the Supreme Court. Ideas previously confined to the fringes of political and academic debate have gone mainstream. Demands to rethink the way the Court operates have become particularly prominent among those on the political left who have been scarred by a series of recent setbacks: the Republican refusal to hold hearings on Merrick Garland during Barack Obama’s last year in office, culminating in the appointment of the reliably conservative Neil Gorsuch to the vacant seat; last Term’s string of highly consequential conservative 5-4 rulings; and, most recently, the Republican victory in placing Brett Kavanaugh on the Court after a spectacularly controversial and partisan confirmation process.

With the conservatives basically running the table over the past couple years when it comes to the Supreme Court, liberal activists, politicians, and commentators have been urging an array of Court reforms. In a series called “Rethinking the Supreme Court,” ISCOTUS will explore some of these proposals. In this post, we’ll look at term limits for Supreme Court justices.

The idea of abandoning life tenure for Supreme Court justices in favor of fixed terms is not particularly new. In the early 1980s, John Roberts, then a lawyer in the White House counsel’s office during the Reagan administration, expressed support for term limits. In 2006, law professors Steven Calabresi and James Lindgren wrote a lengthy law review article advocating this reform. But in recent years the idea seems to have gained strength. The most common proposal is for fixed 18-year terms for justices, staggered so that each President gets two appointments per four-year term.

The biggest challenge for this reform: most assume it would require a constitutional amendment, and it’s hard to envision getting the super-majority support required to make this happen. Yet recent polls show that a solid majority of Americans support term limits for Supreme Court justices, suggesting the possibility of a viable amendment campaign.

The leading advocate for term limits for Supreme Court justices today is a judicial reform organization called Fix the Court. Rather than a constitutional amendment, this group is pushing a proposal for term limits by congressional statute,.

The proposal, called the Regularization of Supreme Court Appointments Act, aims to “depoliticize and regularize the U.S. Supreme Court confirmation process.” The plan would allow the presidents to nominate a justice in the first and third year of each of their terms, which would eliminate the “randomness” of the confirmation process.

To get around the constitutional requirement that federal judges “hold their Offices during good Behaviour”—i.e., judicial lifetime tenure—Fix the Court’s proposal requires that when a new justice is appointed to the Court, the longest serving justice moves to the status of “Senior Justice.” A Senior Justice would no longer be a regular member of the Court. Rather, this justice would have a more limited role, serving on cases where there’s a conflict of interest for another judge; breaking ties on the most controversial cases; fulfilling vacancies that arise because a justice dies, retires, or is removed; and serving on lower federal courts.

According to Gabe Roth, Fix the Court’s executive director, the proposal “lower[s] the stakes in a way that would make each nomination seem less like partisan Armageddon.” He argues that such a reform would allow for the appointment of justices who are older, more experienced, and less ideological.

“Suddenly everybody wants to explore term limits for Supreme Court justices” Yale Law Professor Stephen Carter recently wrote. “Welcome aboard. I’ve been on that train for almost a quarter of a century.”

“At a time when American institutions seem increasingly fragile, a compromise like term limits for Supreme Court justices would be a much-needed vote for long-term stability,” writes Lee Drutman in Vox. “If not, the politics of Supreme Court appointments will only get worse.”

“The current system began, obviously, in the 18th century, when both politics and human lifespans were very different,” wrote David Leonhardt in the New York Times during the Kavanaugh hearings. “It’s time for a change.”

This post was written by ISCOTUS Fellow Michael Halpin, Chicago-Kent Class of 2020, and edited by ISCOTUS Editorial Coordinator Matthew Webber, Chicago-Kent Class of 2019, and ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.



Oral Argument: Double Jeopardy and Separate Sovereigns

As many observers of the legal drama surrounding President Trump have noted, under current Supreme Court precedent, a state can prosecute someone for a crime after the federal government has already done so — or vice versa. Recently, the Supreme Court heard oral argument in the case of Gamble v. United States, which raises the issue of whether to reverse that longstanding doctrine, known as the “separate sovereigns” exception to the Double Jeopardy Clause. (The Clause guarantees that no one shall “be twice put in jeopardy” “for the same offence,” which generally means that a person cannot be tried twice for the same crime.

In 2015, police pulled over Terance Gamble for a faulty headlight. After the police officer smelled marijuana and searched the car, he found a handgun. Both the state of Alabama and the federal government also charged Gamble with possession of a firearm as a felon, and he was convicted in state court.

Gamble then argued that the federal court should dismiss the charge against him under the Double Jeopardy Clause. The trial court rejected his argument, relying on the separate sovereigns doctrine, and the Eleventh Circuit affirmed.

In oral argument on December 6, Gamble’s attorney argued that the separate sovereigns exception to the Clause is inconsistent with the Clause’s text and original meaning. He pointed out that the Clause’s drafters intended the text to incorporate English practice, and there was no practice of inter-sovereign successive prosecutions in English history.  

Justice Alito expressed concern about the ramifications Gamble’s argument would have for national security. The Justice posed a hypothetical in which terrorists kill American tourists in a foreign country and an inept prosecution yields an acquittal or light sentence. The Justice asked whether Gamble’s position would be that no prosecution could take place in the United States under the statute Congress enacted to permit prosecution of individuals who murder Americans abroad. Although Gamble’s attorney responded that the Court does not have to reach that question in this case, Justice Kavanaugh disagreed, stating that Gamble’s position would logically extend to Justice Alito’s hypothetical.

Justices also repeatedly expressed concerns about invalidating the separate sovereigns doctrine because such an invalidation would not be in keeping with the principle of stare decisis. Justice Kagan noted that the separate sovereigns rule is 170 years old and 30 Justices have voted in favor of it. The Justice characterized stare decisis as a “doctrine of humility” and expressed doubt that the Court would be comfortable “throwing over 170-year-old rules that 30 Justices have approved just because we think we can kind of do it better.”  Justice Gorsuch expressed the same concern. Justice Gorsuch elicited laughter when he asked “…of all the errors this Court has made over the years…why this one? Why should we care about this one?” Justice Gorsuch noted that the Court did not overrule the 1944 case of Korematsu v. United States, (widely regarded as one of the worst rulings in Supreme Court history), until last year.

Eric Feigin, Assistant to the Solicitor General, argued on behalf of the Department of Justice in support of maintaining the separate sovereigns rule, and he followed up on the Justices’ concerns. Feigin relied on stare decisis in his opening statement, noting 170 years of precedent. He went on to argue that an overruling of the separate sovereigns doctrine would create adverse consequences for law enforcement, for legislatures and for courts, including a deterrence of cooperation between state and federal agencies or courts, the encouragement of aggressive prosecutions, races to the courthouse, and defendants’ trying to “play each sovereign off against the other where one sovereign will have the ability to unilaterally bargain away the other sovereign’s ability to enforce its interests.”

Feigen returned to the hypothetical Justice Alito had posed to his opponent and said it’s not just a hypothetical problem but “a real one.” Feigin noted that in 2003 the FARC (Revolutionary Armed Forces of Colombia) rebels in Colombia kidnapped American journalists and held them hostage for five years. The Colombian government eventually dropped charges against the rebels.

Kyle Hawkins, Texas Solicitor General, argued as an amici curiae, in support of maintaining the separate sovereigns doctrine. Hawkins said he represented a coalition of 36 states that are united in urging the Court not to overrule the doctrine. Hawkins said an overruling of the separate sovereigns doctrine would force courts across the country to determine how to apply double jeopardy analysis when charges related to the same set of acts or transactions are brought under different completely different statutory schemes.

Check out The Atlantic, The New York Times, and The Washington Post for more information on this case.

This post was written by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, edited by Matthew Webber, ISCOTUS Editorial Coordinator, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director Carolyn Shapiro.