The common law plays an outsized role in the Supreme Court’s decision yesterday that the Double Jeopardy Clause does not bar successive prosecutions by the states and the federal government. The petitioner in Gamble v. United States relied on English common law to gloss the original meaning of the Clause and claimed that seventeenth- and eighteenth-century cases and treatises support the notion that, at the time of the Founding, the common law prohibited trying an individual for an offense when another sovereign country had already done so. Justice Alito, writing for the seven-member majority, rejected this argument; he instead reaffirmed the line of Supreme Court cases holding that the Double Jeopardy Clause permits both the federal government and the states to prosecute a defendant because they are separate sovereigns and, therefore, an “offense” against one is not the same as an “offense” against the other. In doing so, he relied on the Supreme Court’s own common law—its prior precedents interpreting the Double Jeopardy Clause.
Contending that “something more than ‘ambiguous historical evidence’ is required before we will ‘flatly overrule a number of major decisions of this Court,’” Justice Alito concluded that Gamble failed to adduce a historical basis of a more than “middling” sort for his claim (Gamble, 587 U.S. ___, 11-12 ). In the face of seemingly inconclusive history, the majority in Gamble thus decided to stick with precedent instead of original meaning.
Justice Thomas wrote separately to reject the majority’s understanding of stare decisis in an opinion that has already been widely discussed—partly because it has been taken as a window into the effort to undermine abortion rights as based merely on constitutional precedent rather than original meaning. Thomas’s long explication of his understanding of English common law and the judicial role of the Supreme Court has additional methodological significance, however. In the opinion, he attempts to bolster the importance of English common law as a source for constitutional rules while at the same time rejecting the Supreme Court’s reliance on precedent—a reliance that he acknowledges emanates from English common law practice. So how does he separate out common law doctrine from adherence to precedent?
According to Justice Thomas’s account, although stare decisis emanated from the common law, precedent did not exert absolute control within that system. As he writes, “the common law did not view precedent as unyielding when it was ‘most evidently contrary to reason’ or ‘divine law,’” and an earlier decision was simply “not law” when it “fail[ed] to conform to reason” (Gamble, 587 U.S. ___, 6-7 [Thomas, J., concurring, 6-7]). On its own, the language Thomas quotes would not prevent judges from basing decisions on their independent assessments of justice and fairness. Thomas insists, however, that “common-law judges were tasked with identifying and applying objective principles of law . . . to particular cases (Gamble, 587 U.S. ___, 7 [Thomas, J., concurring]). Precedent, under Thomas’s account, only helped to identify objective rules rather than itself producing them. With the advent of the Constitution, the rules were codified into “positive law,” a fact that “removes most (if not all) of the force that stare decisis held in the English common-law system” (Gamble, 587 U.S. ____, 8 [Thomas, J., concurring]). The role of objective rules, however, remains. Rather than being diagnosed by judges, they reside instead in the words of the text and its original public meaning; “the key premise,” according to Thomas, is that “words, including written laws, are capable of objective, ascertainable meaning” (Gamble, 587 U.S. ____, 8 [Thomas, J. concurring]).
As Thomas acknowledges though, ambiguities may arise. Put in his language, “Written laws ‘have a range of indeterminacy,’ and reasonable people may therefore arrive at different conclusions about the original meaning of a legal text after employing all relevant tools of interpretation” (Gamble, 587 U.S. ____, 12 [Thomas, J. concurring]). Then and only then would Thomas deem precedent relevant. The Gamble case he views as “a good example” of this very situation (Gamble, 587 U.S. ____, 13 [Thomas, J. concurring]).
But what if ambiguity were a problem not on the periphery of constitutional interpretation but at its core? And whose understanding of the clarity of history should control? In the 5-4 decision in Franchise Tax Board of California v. Hyatt (587 U.S. ___ ) that Justice Thomas authored less than a month ago, he relied on historical claims disputed by four of his colleagues to overrule Nevada v. Hall, 440 U.S. 410 (1979), and hold that the Eleventh Amendment bars states from being sued by individuals in the courts of their sister states. In that case, no one argued that the text dictated the Court’s result. Instead, Thomas asserted, “at the time of the founding, it was well settled that States were immune under both the common law and the law of nations,” and that the states comprising the United States “retained these aspects of sovereignty” (587 U.S. ____, 9 ). The dissenters would surely contest the certainty of these historical assertions.
Nothing in Justice Alito’s opinion in Gamble relies on the rarity or frequency of constitutional ambiguity. And his conclusion that, in the absence of decisive historical evidence to the contrary, precedent should control, comports with common law traditions of judicial adjudication. Yet his opinion leaves open the question of what the Court would or should have done in the absence of earlier decisions about the meaning of the Double Jeopardy Clause. In that circumstance, why should reason not still weigh heavily in the justices’ considerations as it did within the common law tradition Justice Thomas treats? Ambiguous history does not mean no history at all; it simply means that history does not dictate a particular result. In that context, deciding not to protect a right may contravene the historical record just as much as deciding to protect it. When that is the case, it would make sense for the justices to return to the underlying interests that the Constitution was designed to protect in order to craft the best interpretation of a Clause in the present. Such an intervention might look more like Justice Gorsuch’s or Justice Ginsburg’s dissents, which emphasize interpreting the Double Jeopardy Clause in light of protecting liberty, than it would resemble the majority opinion in Gamble.
Bernadette Meyler, JD ’03, is a scholar of British and American constitutional law and of law and the humanities. Her forthcoming book Theaters of Pardoning (Cornell UP, 2019) demonstrates that the representation of pardoning tracks changing conceptions of sovereignty within the plays and politics of seventeenth-century England.