How the Gamble Double Jeopardy Argument Went at the Supreme Court

Update (October 2026): The Supreme Court decided Gamble on June 17, 2019. As the argument below suggested, the Court kept the separate sovereigns doctrine by a 7-2 vote. Justice Alito wrote the majority opinion. Justices Ginsburg and Gorsuch dissented. See Gamble v. United States, 587 U.S. 678 (2019).

On December 6, 2018, the Supreme Court heard oral argument in Gamble v. United States, No. 17-646. We covered the background of the case last week. Here is how the argument went, question by question.

How Gamble ended up at the Supreme Court

In 2015, police in Alabama stopped Terance Gamble for a damaged headlight. They searched his car and found marijuana, a digital scale, and a handgun.

Gamble had prior convictions, so he was charged with several crimes, including being a felon in possession of a handgun. The key to the case was that both Alabama and the federal government charged him with that same offense.

After serving a year-long sentence for his state conviction, Gamble argued that the federal case violated the Double Jeopardy Clause of the Fifth Amendment. The lower courts disagreed. They were bound by Supreme Court cases creating the "separate sovereigns" doctrine. That doctrine says a state and the federal government can each prosecute the same conduct.

The question for the Supreme Court was whether to overrule that doctrine as unfair in Gamble's case.

Gamble's argument: text and history

Gamble's lawyer argued first. He focused on the words of the clause and how it was understood when the Constitution was written. It appeared he wanted to appeal to the "originalists" on the Court, the justices who read the Constitution by its original meaning.

The clause says nothing about separate sovereigns. English law also had a double jeopardy rule, and he pointed to several English cases from the 1700s that seemed to steer away from a separate sovereigns approach.

The justices did not seem impressed by these few historical cases. The doubts did not come only from justices who are not originalists. Chief Justice Roberts questioned whether the new country would have adopted an English approach that cut into its own sovereignty.

Justice Alito raised a concern about terrorism. If a terrorist were first tried in a country that may not have the sophistication and fairness of American courts, could the U.S. still prosecute?

Justice Kagan, who is not persuaded by the trend toward originalism, noted that the doctrine had stood for about 170 years, approved by some 30 justices. She pressed Gamble's lawyer on stare decisis, which means respect for past decisions. Her remarks were probably the best takeaway from this part of the argument:

I'm a little bit . . . confused as to why your argument seems, frankly, a little bit one note. You know, your brief and now your argument is just all about the original jurisdiction. And there are some people on this bench that think that that is the alpha and omega of every constitutional question.

But there are other people on this bench who do not, who think that 170 years of significant practice where 30 justices have signed on to a rule, that you're going to have to give me more than the fact that . . . pretty early on in the republic they decided that that was not what the original understanding was, even if they're wrong. . . And so this is your opportunity to give me more.

Gamble's lawyer did his best to give her more. But he relied only on an argument about incorporation, meaning how constitutional rights came to apply to the states. Justice Kagan had already rejected that reasoning earlier in the argument.

Even Justice Kavanaugh, the newest justice and also seen as an originalist, seemed concerned about stare decisis. He spoke of the Court showing stability and humility by respecting precedent.

The government's argument: practice and precedent

Justice Ginsburg opened by noting that scholars and courts had widely criticized the doctrine. The government's lawyer answered that the doctrine had not caused real problems in practice.

He pointed to the Justice Department's "Petite policy." Under that policy, federal prosecutors are careful not to bring a second case for the same conduct. They do so only in limited cases, working with the states, when the Justice Department believes a state prosecution left federal interests unaddressed. He said the federal government brings such cases only about 100 times a year.

He also argued that ending the doctrine could block U.S. prosecutions of crimes already tried in other countries. He called that a huge cost to the United States.

Justices Ginsburg and Gorsuch pushed on federalism concerns. The government's lawyer handled their questions well, using case examples. He answered that people already live under both federal and state law for taxes and business rules. Facing both state and federal criminal law should not surprise anyone.

Our take after the argument

The government made a strong case that Gamble needed more than history to overturn a 170-year-old rule, and that is how it turned out. Our background post explains what the ruling means if you face both state and federal charges.

Facing a federal sentence? Book a consultation to talk it through with Brandon Sample.