Thread by @michaelmorley11

Re: #SCOTUS ruling in Gamble: In my opinion, there's an argument inter-sovereign Double Jeopardy need not be symmetrical. There are many reasons a single state's prosecutorial choices shouldn't bind the federal gov't. But the analysis seems different for fed gov't binding states.

From structural perspective, a single state's actions shouldn't give rise to double jeopardy bar against fed'l gov't. But the fed'l gov't represents the people as a whole, including the ppl of each state, so its actions may more reasonably preclude a state retrial (cf preemption)

3/ The Double Jeopardy Clause originally applied only to the federal gov't, so only federal prosecutions could be blocked. Since a state prosecution couldn't bar a later federal prosecution under my potential approach, the DJ Clause was subject to the dual-sovereigns doctrine.

4/ Once the DJ Clause was incorporated through 14th Amd, it applied to state gov'ts and, for the first time, could bar state prosecutions.

Despite the Gamble Court's analysis on page 30, however, the dual sovereigns analysis is different under the DJ Clause as incorporated.

5/ The fact that a state conviction/acquittal can't bar a later fed'l prosecution under the 5th Amd DJ Clause doesn't dispositively resolve whether a federal conviction/acquittal can bar a later state prosecution under 14th Amd, because of differences between fed'l & state govts

6/ I think incorporation raised the possibility of an asymmetrical DJ doctrine, based on the different structural roles of the federal government and states, which as far as I know the Court has never considered.

7/ I'm starting to wonder if the Court took cases like this and Gundy to have some easy con law cases where it can issue lopsided bipartisan majority rulings that transcend the predicted 5-4 split, making it seem less politicized when it issues other controversial rulings