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When Double Jeopardy Is Effectively Constitutional


As was widely expected after oral argument, the Court held today that it does not violate the Fifth Amendment’s double jeporady clause for an individual to be tried by both state and the federal governments for the same underlying conduct. The decision was 7-2 with Alito writing for the Court, Thomas concurring to explicitly denounce the concept of state decisis and implicitly to argue that Roe v. Wade should be overruled, and Ginsburg and Gorsuch writing separate dissents. This is a difficult case, not least because of the dual sided nature of equal protection; the state can deny justice by refusing to prosecute in some cases as well as through selective and abusively redundant prosecutions. But I think ultimately I would have voted with RBG:

From Black’s dissent in Bartkus:

The Court, without denying the almost universal abhorrence of such double prosecutions, nevertheless justifies the practice here in the name of “federalism.” This, it seems to me, is a misuse and desecration of the concept. Our Federal Union was conceived and created “to establish Justice” and to “secure the Blessings of Liberty,” not to destroy any of the bulwarks on which both freedom and justice depend. We should, therefore, be suspicious of any supposed “requirements” of “federalism” which result in obliterating ancient safeguards. I have been shown nothing in the history of our Union, in the writings of its Founders, or elsewhere, to indicate that individual rights deemed essential by both State and Nation were to¬†[be lost through the combined operations of the two governments. Nor has the Court given any sound reason for thinking that the successful operation of our dual system of government depends in the slightest on the power to try people twice for the same act.

However much aid and comfort it might give to certain Trump associates, I think this analysis is correct. But, at any rate, the “dual sovereignty” loopholed to double jeopardy has been retained.

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