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1/ Running thread as I read through the 88 pages (!) of Gamble v. US. First, I'll start w/ J. Alito's majority opinion #SCOTUS
2/ Gamble considered a draft of the Double Jeopardy Clause that was rejected. Alito says this draft should "count for little" bc "The private intent behind a drafter’s rejection of one version of a text is shoddy evidence of the public meaning of an altogether different text" 
3/ In other contexts, Justices have given great weight to rejected proposals. For, in Lee v. Weisman context, J. Souter focused at great length about earlier versions of the Establishment Clause that were rejected. scholar.google.com/scholar_case?c…
4/ And in Heller, J. Stevens gave great weight to "the drafting history of the Amendment [which] demonstrates that its Framers rejected proposals that would have broadened its coverage to include" civilian use
5/ J. Alito, indirectly at least, rejected original-intent originalism, and fully embraced original-public meaning originalism. This position is quite significant, as it calls into question serious attempts by the Progressive justices to engage in originalism.
6/ Akhil Amar pulled off the rare #SCOTUS-quadfecta: cited in the majority opinion (Alito), concurring opinion (Thomas), and both dissents (Ginsburg and Gorsuch). Three of them Yalies, and RBG cited Amar's piece in Columbia L.Rev. to even it out.
7/ I will jump ahead to RBG's dissent, and then Gorsuch's dissent, with references back to Alito's majority opinion where appropriate.
8/ RBG channels the Chisholm v. Georgia majority: the "'ultimate sovereignty' residents in the governed." That is, the people. And the citation to Federalist No. 22 echoes J. Blair's opinion in Chisholm.
9/ Likewise, J. Gorsuch writes that "Under our Constitution, the federal and state governments are but two expressions of a single and sovereign people." He expressly rejects J. Iredell's position that "sovereignty in this country belongs to the state and federal governments"
10/ J. Alito says Ginsburg and Gorsuch argument on sovereignty is "based on a non sequitur." He adds, "the people are sovereign, but that does not mean that they have conferred all the attributes of sovereignty on a single government."
11/ Alito parries with Murphy v. NCAA, which recognized that states had a "residuary and inviolable sovereignty" with respect to the anti-commandeering doctrine.
12/ Alito also cites McCulloch v. MD: Marshall "distinguished precisely between 'the people of a State' and '[t]he people of all the States.'" Therefore, Alito writes, "States and the Nation have different “interests” and “right[s].” Thus, Marshall articulated the dual sov rule
13/ J. Gorsuch responds in a FN: "the federal and state governments ultimately derive their sovereignty from one and the same source" and McCulloch "did not hold that the two governments could work in concert to abridge the people’s liberty in a way that neither could on its own"
14/ Alito's citation of McCulloch and NCAA highlights the many ways in which the term "sovereignty" is used. It has different meanings in Chisholm/Hans than it does in NY/Printz. Alito highlighted a fracture that will create some tensions for originalists in future sov imm cases
15/ The dissenters raise a second general objection to the majority's conception of sovereignty. RBG explains that the "division of authority" operates as a “a double security [for] the rights of the people.” Yet, the majority "invokes federalism to withhold liberty"
16/ J. Gorsuch makes a similar point: "Yet today’s Court invokes federalism not to protect individual liberty but to threaten it, allowing two governments to achieve together an objective denied to each."
17/ J. Alito responds: "So while our system of federalism is fundamental to the protection of liberty, it does not always maximize individual liberty at the expense of other interests."
18/ Alito adds, "It is also not at all uncommon for the Federal Gov to permit activities that a State chooses to forbid." For example, "And a State may choose to legalize an activity that federal law prohibits, such as the sale of marijuana" And no Raich citation! @RandyEBarnett
19/ Finally, J. Alto chastises J. Gosuch: "it is thus quite extraordinary to say that the venerable dual-sovereignty doctrine represents a ‘desecrat[ion]’ of federalism." I'm surprised J. Thomas didn't ask to claw back this barb.
20/ RBG responds to Alito in a FN: Constitution prohibits successive prosecutions, but not dual regulation. This argument merely restates the debate. The majority said the Constitution has no such "safeguard." RBG's response is non-responsive.
21/ J. Gorsuch offers more developed response to J. Alito: the "separate sovereigns exception, which allows the federal and state governments to accomplish together what neither may do separately consistent with the Constitution’s commands"
22/ Part III of J. Alito's majority opinion focuses on stare decisis. This discussion of precedent differs from Janus, in which there was no effort to address the original meaning of the First Amendment. (cc @WilliamBaude)
23/ In Gamble, the stare decisis section was very originalism-centric. J. Alito wrote that "something more than 'ambiguous historical evidence' is required before we will 'flatly overrule a number of major decisions of this Court.'"
24/ Here, the historical record is, at best, "muddled." J. Alito's repeated reference to a 170-year "chain" brings to mind the Slaughter-House cases which is creeping up on 150 years.
25/ "Gamble has not cited and we have not found a single pre-Fifth Amendment case in which a foreign acquittal or conviction barred a second trial...Gamble faces a considerable challenge in convincing us that the Fifth Amendment was originally understood to establish such a bar."
26/ Contrast that gap w the historical record the Court cited in Timbs w/r/t the Excessive Fines Clause. There, there were countless cases to demonstrate that the right was "fundamental."
27/ This stare decisis analysis here is very originalism-centric. The Court doesn't even have to consider whether "special justifications" exist for overruling precedent bc the historical record is weak. The fight in Janus is far afield from Gamble.
28/ The Court discusses at some length "a decision for which we have no case report: the prosecution in England in 1677 of a man named Hutchinson. (We have a report of a decision denying Hutchinson bail but no report of his trial.)"
29/ Today we take it for granted that courts hire official reporters to document cases. Even so-called "unreported" cases are still reported. Rather, courts would prefer those cases not to be cited.
30/ But in English courts, there often were not official reports of a case. Rather, private lawyers would write about cases--often with different accounts!
31/ J. Alito identifies the "most direct evidence" about "what actually happened to Hutchinson" -- a single sentence. The bulk of that sentence concerned claims by the attorney, not the ruling from the King's Bench.
32/ J. Alito also cites accounts of the Hutchinson case from judges more than half a century later. These judges also cite accounts given by an "interested party" The two judges added details, from sources unknown. And their accounts are "not entirely consistent"
33/ J. Alito notes that in 1800, after the 5th Am was ratified, Hutchinson was mentioned in connection with another case (Roche): "All later accounts of Hutchinson seem to stem from this one shallow root."
34/ J. Alito summarizes all evidence that may bear on the original understanding of the dual-sovereign doctrine.
35/ He concludes: "This is the flimsy foundation in case law for Gamble’s argument that when the Fifth Amendment was ratified, it was well understood that a foreign criminal judgment would bar retrial for the same act." This is an excellent originalist approach to stare decisis
36/ Next, the majority considers Gambles arguments "based on treatises." He "begins with Blackstone, but he reads volumes into a flyspeck." J. Alito also takes another subtle dig at the ALI, and the modern Restatements, which courts do not follow
37/ Gamble also considers "treatises published after the Fifth Amendment was adopted." He notes, correctly, that J. Scalia in Heller "took treatises of a similar vintage to shed light on the public understanding in 1791 of the right codified by the Second Amendment"
38/ Alito counters that in Heller, "The 19th-century treatises were treated as mere confirmation of what the Court thought had already been established"
39/ In Heller, J. Scalia referred to consideration of post-ratification material as "a critical tool of constitutional interpretation." J. Stevens countered that these post-enactment statements "cannot possibly supply any insight into the intent of the Framers"
40/ Alito's majority opinion uses one of my favorite Latin phrases: hostis humani generis [enemies of mankind]. J. Livingston used a variant of the phrase in Pierson v. Post: "hostem humani generis." See also Scalia in Windsor courts.state.ny.us/reporter/archi… oyez.org/cases/2012/12-…
41/ Gamble's final article: the "proliferation of federal criminal law" should justify the departure from precedent. But the Court rejects this argument because Gamble was wrong "about the original understanding of double jeopardy rights."
42/ The Court favorably cites J. Thomas's dissent in Raich about Congress overstepping the bounds of its legislative powers. But "eliminating the dual sovereignty rule would do little to trim the reach of federal criminal law"
43/ J. Alito criticized Gamble's reliance on a draft version of the 5th Amendment that was rejected. I noted that this statement was an express repudiation of original intent originalism. See supra thread at 2-5
44/ RBG replies with a subtle dig at originalism: "On another day, the Court looked to the First Congress’ rejection of proposed amendments as instructive." She cites Cook v. Gralike (2001) (Stevens, J.). (J. Scalia joined that opinion). scholar.google.com/scholar_case?c…
45/ Now onto J. Gorsuch's solo dissent. I have never before seen a #SCOTUS opinion with *all* of the citations in footnotes. I love it! @BryanAGarner prevails over Scalia here.
46/ Gorsuch's dissent turns on the original public meaning of the phrase "same offence" in the Double Jeopardy Clause. He quotes Blackstone: "constitutional protections were not meant to be flimsy things but to embody “principles that are permanent, uniform, and universal.”
47/ Rather, J. Gorsuch cites history going back to Rome, Athens, and the Jewish Republic to show that "same offence" should not "bear such a lawyerly sovereign-specific meaning"
48/ Part IV of J. Gorsuch's dissent focuses at length of stare decisis: "judges swear to protect and defend the Constitution, not to protect what it prohibits"
49/ Gorsuch adds "blind obedience to stare decisis would leave this Court still abiding grotesque errors like Dred Scott v. Sandford, Plessy v. Ferguson, and Korematsu v. United States." This analogy is rhetorically sweeping, but jurisprudentially shallow.
50/ Stare decisis has nothing to do w/ Dred Scott. #SCOTUS never overturned the case; the 13th and 14th Am did. Brown didn't actually overrule Plessy. The holding was limited to "public education," not railroad cars. Finally, Korematsu was only overruled in the "Court of history"
51/ Gorsuch then applies the factors from Franchise Tax Board to considser whether a precedent should be retained. (There is a good reason why RBG didn't even acknowledge Gorsuch's dissent)
52/ Gorsuch's next argument is bizarre. He analogizes Moore v. Illinois to Dred Scott. Why? Both "violence to the Constitution in the name of protecting slavery and slaveowners."
53/ This guilty-by-association analogy is weak. Gorsuch is trying to tap the universal outrage against the anti-canonical Dred Scott. But it sounds more in the modern-day epitaph of "Lochner!," which is a stand-in for any jurisprudence you dislike. Not a fan of this argument.
54/ Now, onto J. Thomas's concurring opinion.
55/ The Thomas concurrence focuses primarily on stare decisis. But he discusses, briefly, the double jeopardy question: "I agree that the historical record does not bear out my initial skepticism of the dual-sovereignty doctrine"
56/ Thomas drops a huge FN1: "Congress has taken from the People authority that they never gave" and #SCOTUS "has been complicit by blessing this questionable expansion of the Commerce Clause" and "much of Title 18" is "an imposition on the People’s liberty"
57/ Thomas writes that "the Court’s typical formulation of the stare decisis standard does not comport with our judicial duty under Article III because it elevates demonstrably erroneous decisions...over the text of the Constitution."
58/ Here, Thomas favorably cites Roberts's Obergefel dissent, which in turn cited (what else!) Lochner! Stare decisis "giv[es] the venire of respectability to our continued application of demonstrably incorrect precedents"
59/ He observes, failing to adhere to "the correct, original meaning of the laws" "invites arbitrariness into judging."
60/ In a footnote, Thomas writes that he makes no "claim about any obligation of “inferior” federal courts, or state courts to follow Supreme Court precedent." This point lends itself nicely to my draft article, "Originalism in the Lower Courts." See
61/ Thomas contrasts the English common-law courts which "defined many legal principles" with the federal courts, which "applied a limited body of written laws articulating those legal principles."
62/ This passage reminds me of J. Scalia's critique of legal ed "Matter of Interpretation" - 1Ls study common law classes, which is "not really common law," but "law developed by the judges." He added, "rendered stare decisis rendered prior judicial decisions 'custom'"
63/ He adds, "It explains why first-year law school is so exhilarating: because it consists of playing common-law judge, which in turn consists of playing king"
64/ Far too many law students finish 1L, and truly believe that the common law process is the way federal courts should function. My students, at least, are quickly disabused of this notion.
65/ In Property, I start w/ Johnson v. McIntosh. In ConLaw, Marbury. Both cases turn on the same question: what law was Chief Justice Marshall applying? Where did he get it from?
66/ Thomas also asserts that common law courts "discovered" rather than made new laws. He added that the Declaration "rests on the premise that certain fundamental principles are both knowable and objectively true." No cite to Finding Law by @WilliamBaude/@StephenESachs, alas
67/ Thomas offers this test: "if the Court encounters a decision that is demonstrably erroneous—i.e., one that is not a permissible interpretation of the text—the Court should correct the error, regardless of whether other factors support overruling the precedent."
68/ 'A demonstrably incorrect judicial decision, by contrast, is tantamount to making law, and adhering to it both disregards the supremacy of the Constitution and perpetuates a usurpation of the legislative power."
69/ Every year I ask my students if the Supremacy Clause requires judges to take an oath to support #SCOTUS decision. Thomas answers my q: "the Constitution does not mandate that judicial officers swear to uphold judicial precedents"
70/ Cases like Marbury and Youngstown recognized that the Constitution is supreme with respect to "repugnant" executive and legislative actions. "The same goes for judicial precedent."
71/ Thomas adds, "because the Constitution is supreme over other sources of law, it requires us to privilege its text over our own precedents when the two are in conflict."
72/ FN5 is a powerful rejoinder to judicial supremacy: Congress and executive "take an oath to uphold the Constitution, not to blindly follow judicial precedent." The "federal courts’ judgments bind all parties to the case." Their judgments, and not their precedents.
73/ Thomas expressly rejects the notion that "special justification" is needed to depart from precedent. And he expressly rebuts Breyer's book, which cited an additional factor: whether a precedent "has become well embedded in national culture."
74/ FN6 clarifies Thomas's usual approach to reconsidering precedent: wait until "a party raises the issue or a previous opinion persuasively critiques the disputed precedent." Thomas is very good at the latter.
75/ Thomas also discusses Madison's concept of "liquidation." (Again, no love to @WilliamBaude). He explains that "reasonable people may therefore arrive at different conclusions about the original meaning of a legal text after employing all relevant tools of interpretation"
76/ Thomas adds that "It is within that range of permissible interpretations that precedent is relevant." (This concept sounds very much in @lsolum/@RandyEBarnett distinction between interpretation and construction.)
77/ During his confirmation hearing, J. Kavanaugh said "Precedent is not just a judicial policy. Precedent comes right from Article III of the Constitution." He added that this view is based on Fed. 78 reason.com/2018/09/15/kav…
78/ Thomas says the exact opposite: "the judicial policy of stare decisis permits courts to constitutionally adhere" to a decision that is "not demonstrably erroneous." This policy is not grounded in the Constitution.
79/ Next, CT cites how he and Justice Scalia disagreed in McIntyre v. Ohio Elections Commission about whether the First Amendment protects anonymous speech - "there is room for honest disagreement."
80/ Thomas expressly adopts the @lsolum/@RandyEBarnett construction model: "the law never 'runs out' in the sense that a Court may adopt an interpretation beyond the bounds of permissible construction
81/ Only towards the end of his concurrence does CT explain why he does not join with Gorsuch's "admirable" dissent -- when 5th Am was ratified, "the common law certainly had not coalesced around this view"
82/ Thomas also makes a point that is seldom stated in Court: stare decisis is generally used to protect decisions that promote progressive causes. The citation to Goldberg is perfect. I sometimes joke about an alternate rule: no stare decisis for any decision J. Brennan joined
83/ And, for one final swoon, CT rebukes the Court for failing to reconsider Slaughter-House in both McDonald and Timbs: "No subjective balancing test can justify such a wholesale disregard of the People’s individual rights protected by the Fourteenth Amendment."
84/ From start to finish, this decision is worth a careful study. All four opinions brought their A-Games.
85/ Plus, it is a case study in ConLaw. The opinions cite (in order of appearance) Alden v. Maine, Gregory v. Ashcroft, Murphy v. NCAA, McCulloch, Payne v. TN, Heller, Houston v. Moore, Gonzales v. Raich, Obergefell, Citizens United, Casey, Marbury, Osborn, Erie, Youngstown...
86/ ... , ZIvotofsky, Chadha, Lawrence, McDonald, Timbs v. Indiana, Bond, Testa v. Katt, Claflin v. Houseman, NY v. US, Dred Scott, Plessy, Korematsu, and Palko v. CT. And by my count, there are 13 citations to The Federalist. What a remarkable case!
87/ I think I'm done for now. I may post more comments after I've had more time to digest Gamble.
88/ See also @lsolum post on how Thomas uses the intepreration/construction distinction lsolum.typepad.com/legaltheory/20… @RandyEBarnett
89/ @dorfonlaw on J. Thomas "Three years ago he joined a concurrence by J. Ginsburg calling for #SCOTUS to examine the separate sovereigns principle. After hearing the arguments, he concluded that the case for overruling was not persuasive." dorfonlaw.org/2019/06/the-co…
90/ Mark Walsh on Alito's hand-down: "This search has turned out to be very much like the search for the Yeti" scotusblog.com/2019/06/a-view…
91/ End. You can see all the tweets in this superthread: threadreaderapp.com/thread/1140660…
