The Supreme Court took a small bite out of the nearly thirty remaining cases on Monday, issuing rulings in four. While there were two 5-4 decisions, the judicial breakdown showed conservative/liberal fault lines might not be reliably used to predict or discuss the current Court. Perhaps the most watched is Gamble v. U.S., which examined dual prosecutions at the state and federal level. The two dissenters from the majority in the case were President Trump’s most recent nominee, Justice Gorsuch, and Justice Ruth Bader Ginsburg, who has now reached iconic status with the left. The odd couple wrote separately but agreed on many main points. Here is a breakdown of the Court’s holdings and arguments.
Double Prosecutions Are Not Double Jeopardy - Gamble v. United States
Trying a person criminally for the same act at the federal and state levels is not double jeopardy according to Justice Alito. He wrote the Court’s 7-2 decision and was joined by Roberts, Thomas, Breyer, Sotomayor, Kagan, and Kavanaugh. Justices Ginsburg and Gorsuch disagreed, writing separately in dissent. Justice Thomas wrote a separate concurrence.
The second part of the Fifth Amendment reads “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” You can’t be tried twice for the same crime – but what if a different government is doing the prosecuting? Terance Martez Gamble was found guilty for being a felon in possession of a firearm in both Alabama state court and federal court. He argued the multiple prosecutions for the same act violated his Fifth Amendment double jeopardy protections.
The majority said that while the act was the same – being a felon with a gun – the “offence” was not. The Court ruled that since we have a dual-sovereignty system, with two separate laws, there are therefore two different “offences,” each of which is punishable. Justice Alito wrote that “the United States is a federal republic,” and that the dual-sovereignty doctrine is not an exception to the Fifth Amendment, but that it flows from the text. He explained that “where there are two sovereigns, there are two laws and two ‘offences.’” Finally, the majority wrote that stare decisis, or the legal notion that previous rulings have a bearing on future decisions, weighed heavily against Gamble and in favor of continuing to allow these prosecutions.
Justice Gorsuch’s dissent was a plea for liberty and a wholesale rejection of the majority analysis:
“[T]his ‘separate sovereigns exception’ to the bar against double jeopardy finds no meaningful support in the text of the Constitution, its original public meaning, structure, or history. Instead, the Constitution promises all Americans that they will never suffer double jeopardy. I would enforce that guarantee.”
He reminded his brother and sister Justices that any notion of dual-sovereignty went out the window with Lee’s surrender at Appomattox. Justice Ginsberg proposed that the separate sovereigns doctrine is flawed because the people themselves are the sovereigns in our system, and they are the same. She said the Court’s majority perversely “invokes federalism to withhold liberty.” Justice Thomas wrote a somewhat lengthy concurrence focused almost exclusively on the stare decisis argument and why he disagreed with it. He argued that following bad precedent amounts to legislating by the court and serves as a compelling reason not to.
Community Access T.V. Not Open Forum - Manhattan Community Access Corp. v. Halleck
This 5-4 decision means Manhattan Community Access Corp. can ban Halleck from its public access channel. Justice Kavanaugh wrote the Court’s decision and was joined by Roberts, Alito, and Gorsuch. Justice Sotomayor wrote for the dissenters, joined by Ginsburg, Breyer, and Kagan.
Justice Sonia Sotomayor
To secure the license to offer cable TV service in New York, cable companies had to make certain promises, among them was that they would devote some of their bandwidth to public access shows. Manhattan Community Access was appointed by the city to run those channels and gets to make programming decisions. DeeDee Halleck made a film critical of Manhattan Neighborhood Network (MNN), one of the public access channels. She wanted MNN to broadcast the production and they refused. She sued, claiming the refusal to grant him access because of the content of the work was an impermissible violation of his First Amendment rights.
Kavanaugh’s opinion relies on a determination that the city does not own public access channels, and the requirement that license and franchise rights to cable service providers offer the channels does not make them government property. Justice Sotomayor’s dissent, however, laid waste to the notion that MNN was anything other than a government entity:
“MNN is not a private entity that ventured into the marketplace and found itself subject to government regulation. It was asked to do a job by the government and compensated accordingly. If it does not want to do that job anymore, it can stop (subject, like any other entity, to its contractual obligations). But as long as MNN continues to wield the power it was given by the government, it stands in the government’s shoes and must abide by the First Amendment like any other government actor.”
Virginia’s Uranium Mining Ban Stands - Virginia Uranium, Inc. v. Warren
Justice Gorsuch wrote for the Court’s 6-3 decision, joined by Justices Thomas and Kavanaugh. The ruling means Virginia can keep its ban on mining uranium in place. Justice Ginsburg wrote separately in concurrence, and Sotomayor and Kagan signed her opinion. Chief Justice Roberts dissented and was joined by Breyer and Alito.
Virginia has banned uranium mining. The case answers the question of whether that ban was permitted under federal law. The decision hinged on whether federal law concerning nuclear materials precluded state regulation of them. Preemption is a Supremacy Clause doctrine of the Constitution holding that certain matters are of such a national, as opposed to local, character that federal laws preempt or take precedence over state laws. As such, a state may not pass a law inconsistent with the federal law, and certain areas of endeavor are wholly federal, prohibiting state regulation altogether.
As Emily Hammond wrote for SCOTUSblog:
“The Gorsuch opinion stated that state legislative purpose has no place in pre-emption analyses, whereas the Ginsburg opinion expressed discomfort at such a hard-line stance. Roberts’ dissent would have used evidence of state legislative purpose to find that Virginia’s ban was pre-empted.”
Virginia Lower House Cannot Challenge Courts - Virginia House of Delegates v. Bethune-Hill
Justice Ginsburg was joined by Thomas, Sotomayor, Kagan, and Gorsuch in this 5-4 defeat for Virginia Republicans’ attempts to reverse a lower court redistricting order. Justice Alito was joined in dissent by Roberts, Breyer, and Kavanaugh.
Justice Samuel Alito
Virginia’s legislative redistricting was ruled illegally racially gerrymandered by a lower court. Republicans in the House of Delegates sued to have that ruling overturned. This case did not decide the merits of the lower court ruling, but instead whether the House of Delegates itself had “standing,” the legal right to sue. The majority decision holds that the Attorney General of Virginia may sue for the state, but that absent some new law or state constitutional provision, the lower house of the legislature does not have the right to sue on behalf of the commonwealth itself.
Alito writes in dissent that “the districting plan enacted by the legislature embodies the House’s judgment regarding the method of selecting members that best enables it to serve the people of the Commonwealth.” He argues that replacing that plan with another created by the courts “inflicts injury in fact,” which should grant the House standing.
There are still 20+ cases yet to be decided by the Court in the few weeks left in their term, and we will keep you informed when the new rules issue.
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