Thomas says the Court should overturn “demonstrably erroneous precedent”


The Supreme Court upheld the dual sovereignty doctrine in a 7-2 opinion written by Justice Alito. To cut to the chase, this means double jeopardy doesn’t bar a state prosecution following a pardon for a federal conviction on crimes arising from the same behavior.

The justices ruled 7-2 in favor of federal prosecutors and against an Alabama man named Terance Gamble in a gun possession case, in Gamble v. United States, preserving the current system that gives states and the U.S. government broad authority to bring charges against criminal defendants, even if it arises from the same conduct, Reuters reported.

In other words, the Supreme Court will not expand double jeopardy protections. In the case of possible double jeopardy against Paul Manafort in New York, the principle of double jeopardy will not apply.

The President has not ruled out pardoning former staffers who have been convicted of federal crimes, but that is where his power ends. He can not pardon state crimes. New York and other states brought charges against Manafort to make certain he would be punished with a lengthy jail sentence.  The federal judge slapped the 70-year old with a severe 9-year sentence and New York is now planning to transfer Manafort to one of the worst prisons in the country — Riker’s Island — while they try him for essentially the same crimes.

Justices Neil Gorsuch and Kavanaugh were on opposing sides. While Kavanaugh sided with Alito, Thomas and others, Gorsuch joined Ruth Bader Ginsburg in the dissent.

It’s frustrating considering the New York case against Paul Manafort is a malicious prosecution.


Justice Thomas

Justice Thomas was a reluctant ‘yes.’

“When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it,” Thomas wrote in a concurring opinion in a double-jeopardy case decided Monday, according to The Hill.

Conservative Justice Clarence Thomas agreed with the outcome of Gamble’s case but wrote a separate 17-page opinion explaining that the court should be more willing to overturn its precedents.

The use of the “stare decisis” doctrine, according to Thomas, should be revisited by the high court, saying it “elevates demonstrably erroneous decisions — meaning decisions outside the realm of permissible interpretation — over the text of the Constitution and other duly enacted federal law.”

“By applying demonstrably erroneous precedent instead of the relevant law’s text — as the court is particularly prone to do when expanding federal power or crafting new individual rights — the court exercises ‘force’ and ‘will,’ two attributes the people did not give it,” Thomas wrote.

Justices should be using “mere judgement” by following “the correct, original meaning of the laws we are charged with applying,” Thomas contended.

Alito took it from a different perspective.

“Although the dual-sovereignty rule is often dubbed an ‘exception’ to the double jeopardy right, it is not an exception at all,” Justice Samuel Alito wrote in the opinion. “On the contrary, it follows from the text that defines that right in the first place.” “An ‘offence’ is defined by a law, and each law is defined by a sovereign,” Alito wrote, explaining that multiple prosecutions for the same “offence” are banned under the Double Jeopardy Clause, but adding that “where there are two sovereigns, there are two laws, and two ‘offences.’”





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