Associate Justice Neil Gorsuch discusses his brand-new book, A Republic, If You Can Keep It, at the Reagan Library.
Justice Neil M. Gorsuch joins National Constitution Center President and CEO Jeffrey Rosen for a special Constitution Day conversation exploring his new book, A Republic, If You Can Keep It. Justice Gorsuch draws on his 30-year career as a lawyer, teacher, judge, and justice to explore essential aspects of our Constitution, the role of the judge under our Constitution, and the vital responsibility of each American in maintaining a healthy republic.
On 17 June 2019, the US Supreme Court ruled 7-2, in Gamble v. United States, No. 17-646, 587 U.S. (2019), that the Double Jeopardy Clause of the Fifth Amendment did not protect the petitioner against federal prosecution for an unlawful possession of firearms on the basis that the had already been tried for this act before a State court. The Majority opinio written by Justice Alito and joined by Justices Thomas, Breyer, Sotomayor, Kagan, Kavanaugh and Chief Justice Roberts demonstrates a strong literal approach to constitutional interpretation, an faithful adherence to the document’s original meaning and a great concern for federalism.
Justice Alito, writing for the Majority, held that the Double Jeopardy Clause, which protects against being ‘twice put in jeopardy’ ‘for the same offence’, remained subject to the doctrine of separate sovereignty, specifically allowing for prosecution by a State and the federal governments based on the same charges. The Majority opinion in Gamble v. United States applies a strict literal interpretation of the Fifth Amendment (Part IIA), in doing so relying on Justice Scalia’s reasoning in Grady v. Corbin, 495 U. S. 508 (1990) where he distinguished between protection against being prosecuted for the same ‘offence’ and the same ‘act’ (at 529). Justice Alito therefore argues that, as originally understood, an ‘offence’ is defined by a law and law can only be defined by a sovereign. Given that States are sovereign creators of laws, a federal offence and a State offence pertaining to the very same conduct are not in fact ‘the same offence’ and therefore the Double Jeopardy Clause does not apply.
Justice Alito refuses to consider an argument based on the legislative history of the Double Jeopardy Clause holding that “the private intent behind a drafter’s rejection of one version of a text is shoddy evidence of the public meaning of an altogether different text.” (Part IIA). But at the same time, he claims that even if the legislative history was to be relied on, it would support the doctrine of separate sovereignty. This, however, by no means is a rejection of the importance of the original meaning of the Fifth Amendment. The Majority opinion deals extensively with the argument that the doctrine of separate sovereignty goes against the English common law understanding of the rule against double jeopardy pre-dating the adoption of the Fifth Amendment, but it rejects this argument as both unsubstantiated (Part IIIA) as well against a long strain of US cases going back as far as 1847. The Majority invokes the case of Fox v. Ohio, 5 How. 410 (1847) where, at 435, the Supreme Court held that “offences falling within the competency of different authorities to restrain or punish them would not properly be subjected to the consequences which those authorities might ordain and affix to their perpetration.” (Part IIB).
Finally, Justice Alito adds yet another layer of argument – federalism. For him, States could be compared to foreign countries in terms of their sovereignty vis-a-vis the federal government. Justice Alito argues that in the absence of the doctrine of separate sovereignty, American courts would not be able to try people who have been tried in foreign courts as this would inevitably trigger the Double Jeopardy Clause. In fact, he states that “[the] Constitution rests on the principle that the people are sovereign, but that does not mean that they have conferred all the attributes of sovereignty on a single government” (Part IIB).
On the other hand, Justice Gorsuch, in his Dissenting opinion, rejects the Majority opinion as grounded nowhere in the Constitution. He argues that the history of the western legal tradition, the legislative history of the Fifth Amendment as well as the English common law understanding of the rule against double jeopardy all point to the word ‘offence’ as not having any technical meaning allowing for a double set of prosecution by a State and the federal governments.
Interestingly, Justice Thomas, used his Concurring opinion, submitted in addition to the Majority opinion which he joined, to re-emphasise his latest criticism of the doctrine of stare decisis as an inviolable rule:
“Given that the primary role of federal courts today is to interpret legal texts with ascertainable meanings, precedent plays a different role in our exercise of the ‘judicial Power’ than it did at common law. In my view, if the Court encounters a decision that is demonstrably erroneous—i.e., one that is not a permissible interpretation of the text—the Court should correct the error, regardless of whether other factors support overruling the precedent. Federal courts may (but need not) adhere to an incorrect decision as precedent, but only when traditional tools of legal interpretation show that the earlier decision adopted a textually permissible interpretation of the law. ” (Part C)
Beyond the impact on the Double Jeopardy Clause, Gamble v. United States appears to be important as it falls within the recent trend of cases decided by the US Supreme Court based on some form of historical approach. In this case, both the Majority and the Dissent argued mainly over the history of the western legal tradition, the legislative history of the Fifth Amendment and the old English common law understanding of the rule against double jeopardy. Crucially, this includes not only the five originalists, but also the four liberals.
On 1 April 2019, the US Supreme Court ruled 5-4, in the case of Bucklew v. Precythe, 587 U.S. (2019), that a person sentenced to death, who wants to challenge the method of execution on the grounds that it would cause excessive pain, must demonstrate that alternative methods of execution are available and would cause considerably less pain. Strictly speaking, the decision does not introduce any new rule to this area of law as this approach was already confirmed in Glossip v. Gross, No. 14-7955, 576 U.S. (2015), however it is illustrative of the growing dominance of the originalist approach among the Court’s majority.
The case concerned Russell Bucklew who had been sentenced to death for raping his former girlfriend and murdering her lover. He challenged the use of lethal injection, as an execution method, on the grounds that his medical condition (cavernous hemangioma) could prevent the execution from being effective and cause him tremendous pain before death. The challenge was brought under the 8th Amendment to the US Constitution prohibiting ‘cruel and unusual punishments’.
Since the 1970s, when dealing with challenges to the capital punishment under the 8th Amendment, the Supreme Court, in its majority opinions, has used a mixture of originalism and more liberal methods of interpretation to establish what form of punishment could be considered ‘cruel and unusual’, therefore forbidden. This has produced two sets of decisions. First, those decisions which declared the death penalty unconstitutional in certain circumstances, such as where used against mentally impaired perpetrators (Atkins v. Virginia, 536 U.S. 304 (2002)), those who committed the relevant crime while still being a minor (Thompson v. Oklahoma, 487 U.S. 815 (1988); Roper v. Simmons, 543 U.S. 551 (2005)) or where no death was caused (Coker v. Georgia, 433 U.S. 584 (1977); Kennedy v. Louisiana, 554 U.S. 407 (2008)). Those decisions had the liberal members of the Court (previously: Justices Stevens, Brennan, Marshall, Blackmun; more recently: Justices Breyer, Ginsburg, Sotomayor, Kagan) in the majority, usually with Justice Kennedy or O’Connor joining them, employing some progressive methods of interpretation such as an evolving standard of decency, ie, the idea that whether something is constitutional or not (here the death penalty or various methods of its execution) changes over time as social norms change. In those cases, conservative members of the Court (Alito, Roberts, Rehnquist, Scalia, Thomas, etc) were always in dissent.
The second set of decisions upheld the constitutionality of the death penalty as such and all methods of its execution (Glossip v. Gross, No. 14-7955, 576 U.S. (2015), Baze v. Rees, 553 U.S. 35 (2008)) and minimised the number of procedural hurdles that need to be cleared before the penalty can be imposed (Payne v. Tennessee, 501 U.S. 808 (1991); Herrera v. Collins, 506 U.S. 390 (1993); Schriro v. Summerlin, 542 U.S. 348 (2004); Oregon v. Guzek, 546 U.S. 517 (2006); Kansas v. Marsh, 548 U.S. 163 (2006); Leal Garcia v. Texas, 564 U.S. 940 (2011)). Those decisions were usually issued with a majority opinion based on a ‘soft’ form of originalism (sometimes with a trace of more liberal methods of interpretation) and were supported by Justices such as Kennedy, O’Connor, Alito and Chief Justices Roberts or Rehnquist. However, they were always accompanied by concurring opinions of Justices Thomas and Scalia employing what might be called ‘hard’ originalism. In those decisions, the liberal members of the Court were always in dissent.
The difference between ‘soft’ and ‘hard’ originalism in capital punishment cases is accurately summarised by Justice Gorsuch in his majority opinion in Bucklew v. Precythe, 587 U.S. (2019). The soft originalism:
“…teaches that where (as here) the question in dispute is whether the State’s chosen method of execution cruelly superadds pain to the death sentence, a prisoner must show a feasible and readily implemented alternative method of execution that would significantly reduce a substantial risk of severe pain and that the State has refused to adopt without a legitimate penological reason.” (p13)
On the other hand, under their ‘hard’ originalist approach to the 8th Amendment, Justice Scalia and Thomas:
“…argued that establishing cruelty consistent with the Eighth Amendment’s original meaning demands slightly more than the majority opinion there (or the Baze plurality opinion it followed) suggested. Instead of requiring an inmate to establish that a State has unreasonably refused to alter its method of execution to avoid a risk of unnecessary pain, Justice Thomas and Justice Scalia contended that an inmate must show that the State intended its method to inflict such pain.” (p14)
The case of Bucklew v. Precythe, 587 U.S. (2019) is significant as it illustrates how the new majority of the Court (with two Justices appointed after 2016) gravitates towards ‘hard’ originalism. First of all, the very fact that the majority opinion was written by Justice Gorsuch, who is a proud originalist, sets the tone of this decision from the start. Secondly, in his opinion, Justice Gorsuch conducted a thorough analysis of the use of the capital punishment at the time of the adoption of the 8th Amendment as the only benchmark against which all decisions in this area must be taken (pp8-10). Then Justice Gorusch, speaking on behalf of the majority, confirmed the validity of old precedents upholding various methods of execution such as by firing squad (Wilkerson v. Utah, 99 U.S. 130 (1879)) or using electric chair (In re Kemmler, 136 U. S. 436, 447 (1890)) (pp10-11). What is more, appreciating the difference in approach between ‘soft’ and ‘hard’ originalists, Justice Gorsuch, and with him the majority, did not disapprove of the ‘hard’ originalist approach and instead concluded that:
“…revisiting that debate isn’t necessary here because, as we’ll see, the State was entitled to summary judgment in this case even under the more forgiving Baze-Glossip test [ie ‘soft’ originalist approach].”
Furthermore, even though Justice Thomas submitted his own concurring opinion, he dedicated it almost in its entirety to Justice Breyer’s dissent:
“I adhere to my view that “a method of execution violates the Eighth Amendment only if it is deliberately designed to inflict pain.” Baze v. Rees, 553 U. S. 35, 94 (2008) (opinion concurring in judgment); ante, at 14 [ie ‘hard’ originalist approach]. Because there is no evidence that Missouri designed its protocol to inflict pain on anyone, let alone Russell Bucklew, I would end the inquiry there. Nonetheless, I join the Court’s opinion in full because it correctly explains why Bucklew’s claim fails even under the Court’s precedents. I write separately to explain why Justice Breyer’s dissenting opinion does not cast doubt on this standard…” (p1)
At the same time, Justice Kavanaugh, who also submitted his concurring opinion despite joining the majority, dedicated it solely to:
“…the Court’s additional holding that the alternative method of execution need not be authorized under current state law—a legal issue that had been
uncertain before today’s decision.” (p1)
Finally, what also makes Justice Gorusch’s opinion so significant is making it abundantly clear for future litigants that the 8th Amendment “forbids ‘cruel and unusual’ methods of capital punishment but does not guarantee a prisoner a painless death”.
On 20 February, the US Supreme Court unanimously held, in the case of Timbs v. Indiana, 586 U.S. ___ (2019), that the prohibition on excessive fines contained in the 8th Amendment applied to States (as well as the federal government) and prevented Indiana from confiscating a Land Rover worth $42,000 just because it had been used during a drug transaction. The judgment is significant because it is a rare case of the Court limiting States’ civil asset forfeiture powers but also because of its discussion of the Bill of Rights’ selective incorporation process.
Civil asset forfeiture is a legal tool used by law enforcement to confiscate private property from persons suspected of illegal activity without necessarily charging them with any wrongdoing. According to some estimations, between 2011 and 2014, local and state agencies confiscated $2.5 billion in approximately 62,000 cash seizures conducted ‘without search warrants or indictments’ (The Washington Post). When it comes to the federal government, in 1985, the Justice Department’s Assets Forfeiture Fund brought in $27 million but by 2017, that figure skyrocketed to $1.6 billion (The Atlantic). In Timbs v. Indiana, 586 U.S. ___ (2019), Justice Ginsburg, writing for the majority, referred to the protection from excessive fines as a historically important safeguard recognised as early as the Magna Carta. However, the effective application of the Excessive Fine Clause of the 8th Amendment is a novelty in the Court’s jurisprudence as the Court found a violation of the Excessive Fine Clause for the first time in 1998, in United States v. Bajakajian, 524 U.S. 321 (1998).
The 8th Amendment prohibits, among other things, ‘excessive fines [being] imposed’. In Waters-Pierce Oil Co. v. Texas, 212 U.S. 86 (1909), the Supreme Court held that excessive fines were defined as fines ‘so grossly excessive as to amount to a deprivation of property without due process of law’. In Austin v. United States, 509 U.S. 602 (1993), the Court ruled for the first time that the Excessive Fines Clause applied to civil asset forfeiture conducted by the federal government, but the case was silent on its potential application to States’ actions.
Originally, just as the other Amendments constituting the Bill of Rights, the 8th Amendment was meant to apply only against the federal government. After the Civil War, with the enactment of the 14th Amendment, the Courts began to apply various safeguards contained in the Bill of Rights against States as well as the federal government. Throughout that time, the Courts usually invoked the Due Process Clause of the 14th Amendment as the provision rendering the Bill of Rights applicable against States. In Timbs v. Indiana, 586 U.S. ___ (2019), 7 Justices, in the opinion written by Justice Ginsburg, held that the 8th Amendment applied against the State of Indiana by virtue of the Due Process Clause. On the other hand, Justice Thomas, while concurring in the outcome of the case, produced a separate opinion on the issue of the selective incorporation where he explained that the application of the Bill of Rights against States was possible by virtue of the Privileges or Immunities Clause of the 14th Amendment, rather than the Due Process Clause. Justice Neil Gorsuch, who joined the majority opinion, also wrote a concurring opinion, agreeing with Justice Thomas on the issue of the selective incorporation.
The ruling is expected to have a considerable impact on the the use of civil asset forfeiture as it establishes a strong protection against its abuse, now applicable to both the federal and States’ governments. The case also signals potential future discussions among Justices on the effect of the 14th Amendment on the selective incorporation.