Double Jeopardy

[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb..."

While the Supreme Court made clear that it will clean things up regarding the incorporation of the Fines Clause, it is somewhat surprisingly unlikely to overrule the "separate sovereigns" rule regarding double jeopardy. Some flagged this case (and Kavanaugh's potential fifth vote) during the confirmation battle of the sex offender justice (so-called).  But, it is rather unclear if that was a major concern.

Plus, when the issue was Puerto Rico (part of the federal government, so the rule doesn't apply regarding federal/commonwealth prosecutions), RBG flagged her interest in ending it.  Before it seemed like backstop to Trump pardons (someone like Manafort could be prosecuted for state crimes), many of the same people upset might have agreed the rule was dubious. It seems like trick to be able to subject a person twice for the same offense. That is, until there is a push for the feds to prosecute some civil rights crime after a state acquittal (e.g., the Trayvon Martin case).

But, the justices went full bore (Thomas voiced some opposition to the rule too but doesn't ask questions) on the defendant's lawyer with the exception of Ginsburg and later on Gorsuch.  During the Fines argument, Gorsuch sanctimoniously spoke of how most of the incorporation cases were settled back in the 1940s. No.  Other than the First Amendment, the 1960s (e.g., the right to a lawyer) had quite a few.  Here he found it strange the federalism resulted in two bites of the apple in a way that arguably burdened liberty.  When else does that occur?  The government provided examples such as taxes. Overall, as noted by of all people Kagan, the rule furthers federalism, which ultimately involves state power.

It looks there is a clear majority for the idea -- to quote a 1950s pre-incorporation (yes, the 1950s) -- case upholding the dual sovereignty rule that "Precedent, experience, and reason alike support the conclusion" warrants protecting it.  Precedent was cited by Kagan and Breyer as well as newbie Kavanaugh, who cited his strong barrier for changing it.  He also -- against an unwise one-note originalist defense -- noted that stare decisis is an originalist principle.  Yes, which underlines the ultimate limited nature of that whole matter. Plus, clearly few justices are that into it.

Conservative Senator Hatch provided an amicus brief in support of ending the rule in part because of the expansion of federal crimes which reach much more areas that traditionally would be state only.  Consider that even the assassination of JFK was to be a state trial.  There was reference to this concern during the oral argument but it is unclear how much ending the rule will matter.  If the same offense (let's say an abuse police action) will result in two possible prosecutions because of what exactly is charged, however, we still seem to be hairplitting, aren't we?  There is a policy to take into consideration a state prosecution, but we still had double prosecutions of various mass shooters, for example.

In that Puerto Rico case, Justice Thomas cited his concern about applying the rule to cases involving tribes (which already are a limited "sovereign" as is) while also joining RBG's wider concerns.  The bigger issue for the justices, aided and abetted by the originalist argument relying on just that issue (ultimately, he was left saying you could treat domestic cases differently, which is true, but he opened the door) was first applying it internationally.  The nation does have to apply the same rule and the prosecution cannot be a sham.  But, that need not occur for problems to arise, especially regarding punishment and prosecutorial resources.  There is not an exception for a richer sovereign to prosecute again because the first one had to deal with limited resources and perhaps a less skillful attempt.

I was sympathetic regarding ending the dual sovereignty rule since it does seem unjust to try a person twice for an offense.  The idea that it isn't the same offense because a different sovereign is involved doesn't quite gel. After listening to the oral argument, didn't really change my mind.  The factors discussed above suggests too that ending the rule can be done in such a way that the best case scenarios for applying it will arise seldom. Rules often have exceptions. This includes the concern about some rush to the courthouse, where a state or the federal government will lose out in the process. Some mechanism should be possible to avoid this or at least temper the concern. And, with states so much more obligated to follow national rules, including as applied to criminal justice, precedent arguably goes another way too. 

Finally, it is unclear how often this sort of thing would come up, especially if one criminal event can already be the subject of multiple prosecutions, which we can assume can be both state and federal in nature. Precedent is an important thing but so is basic justice.  It is unclear to me that the rule, all things considered, flows to the former.