A majority of the Supreme Court sounded unlikely.
While it went unmentioned at the oral argument, the case has implications for any presidential pardons that President Trump might issue for those convicted by Special Counsel Robert S. Mueller III. Under the status quo, states might still be able to prosecute under their own laws of those who receive a presidential pardon.
Usual ideological pairings were scrambled as the court took a deep dive into the Double Jeopardy clause of the Constitution, which says no one shall be "subject for the same offense to be twice put in jeopardy of life or limb." The doctrine allowing dual prosecutions by state and federal prosecutors is an exception to the prohibition, recognized by the Supreme Court since the 19th Century.
Liberal Justice Ruth Bader Ginsburg had called two years ago for a fresh look at the "separate sovereigns" doctrine, and described it Thursday as a "double-whammy" for criminal defendants. Neil M. Gorsuch. The colleague most outspoken in apparent agreement.
Samuel A. Alito Jr. and Liberal Justice Elena Kagan. Kagan demanded that Louis A. Chaiten, to Cleveland lawyer representing an Alabama felon, explain why the court should not apply its usual standard of reading issues stand, referred to as stare decision.
"Kagan said" We are really uncomfortable throwing over 170-year-old rules that 30 justices have approved just because we think we can do it better .
New Justice Brett M. Kavanaugh, who joined Kagan.
The formidable task for Chaiten, Kavanaugh said, was not wrong. "When there is uncertainty about the meaning of the constitutional prohibition, Kavanaugh said it was difficult to" clear " that bar. "
Chaiten said history was on his side. "This rule is egregiously wrong. It's a rule that – there was no practice for all of English history, no practice for the first century of this republic. That alone, I think, speaks volumes. "
But Justice Sonia Sotomayor said that the American system of governance, where both the United States and the federal government had an interest in seeing their laws enforced.
"Why is the doctrine wrong?" She asked.
Chaiten represents Terence Gamble, who was convicted of robbery in Mobile County, Ala., In 2008 and two domestic violence charges in 2013.
He was arrested in 2015. Gamble pled guilty to the state charges. But federal prosecutors also brought charges, and he received a lengthier sentence with that conviction.
Chaiten said that the dual prosecutions for such a routine gun possession charge disproved contentions by government prosecutors that were used only in extraordinary cases.
Ginsburg called for the court to reexamine its precedents allowing such prosecutions: "Two years ago, in a concurring opinion. Current 'separate sovereigns' doctrine hardly serves that objective. "Justice Clarence Thomas joined her in that opinion, but was silent as usual during Thursday's hearing.
Ginsburg, though, repeated questioning Department of Justice and Lawyer Eric J. Feigin, who was defending the doctrine.
"You have to grant, will this rule, this separate sovereign rule?" She asked. Amicus briefs in the house have been filed by the left and the right.
Ginsburg and Gorsuch noted that federalism is usually invoked to protect individuals.
Gorsuch said dual prosecutions may have been more limited when they were presumed to take the lead.
"With the proliferation of federal crimes, I think over 4,000 statutes now and several hundred thousand regulations, the opportunity for the [federal] government to seek a successive prosecution if it's unhappy with even the most routine state prosecution is a problem, "he said.
Feigin said there were only about 100 cases when the federal prosecutors chose to bring charges. But he said the option was particularly important in civil rights cases. He noted in the Pittsburgh synagogue houses, and the killings in an African-American church in Charleston.
He also said following the rule of prosecution would prohibit federal prosecution of overseas terrorism cases that injure or kill Americans, if foreign courts moved first.
It is not the same as the first seem to bother the Chief Justice John G. Roberts Jr.
"Is it a race to the courthouse?" He asked Chaiten. "I mean, if a prosecution bars a successive one, the state and federal government may have different perspectives, is it whoever can empanel a jury first is going to block the others?"
Texas Solicitor General Kyle D. Hawkins said the status quo was working well, and meant that state and federal prosecutors cooperate rather than competes. He said he was representing 36 states, with about 86 percent of the country's population. He noted that 20 states bar prosecutions when there was already a federal conviction.
In the urgency of the court not to overrule its long-standing interpretation of the Double Jeopardy Clause, "he said.
The case is Gamble v. United States.