Some of the Supreme Court decisions this term will show why the media is deceptive in portraying a divide between “conservative” and “liberal” justices. If one wants to divide the justices two ways, it would be more accurate to distinguish them as traditionalists or liberal activists. Five justices decide cases more or less in the Anglo American tradition of judging. Their results are sometimes conservative and sometimes liberal. The other four justices reach liberal results more uniformly, even when that requires breaking the normal rules of judging federal cases.
Even restated as traditionalists versus liberals, the division is not really accurate. The liberals usually, but not always, vote together. Sonia Sotomayor split with Ruth Bader Ginsburg this month in voting to keep the Supreme Court out of an election identification case. Elena Kagan and Stephen Breyer have shown themselves willing to join decisions the media calls “conservative” when the grounds are sufficiently narrow. More importantly, the five traditionalists are deeply split among themselves. The divide is largely about how much weight to give to case precedent versus original understanding in the Constitution versus judicial deference.
One of the cases that may highlight the inaccuracy of the conservative and liberal canard is Terance Gamble versus United States. The Fifth Amendment states “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” This is known as the double jeopardy clause, which prohibits the prosecution of a person previously prosecuted for the same offense. The courts have read a separate sovereigns exception into the clause. This means a federal prosecution does not insulate a defendant from a state prosecution and vice versa as federal and state governments are separate sovereigns.
The separate sovereigns exception is firmly embedded in precedent. It has been part of American law for roughly 150 years. But it may well conflict with the original meaning in the Constitution of “twice put in jeopardy.” Liberals have loudly invoked precedent when defending the decades old abortion decision in Roe versus Wade, so you might expect liberals to argue for retaining the separate sovereigns exception.
But that would be to overlook political hypocrisy. Liberals had no trouble urging the Supreme Court to overturn millennia of precedents against same sex marriage. In the Gamble case, a collection of mostly liberal organizations have filed advisory briefs arguing for reversal of precedent and a return to the original meaning in the Constitution. They even cite old English cases in the same way as we stodgy originalists do.
Media stereotypes would encourage us to expect a “party line” decision upholding the separate sovereigns exception. On the winning side would be the “conservatives” of John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett KavanaughBrett Michael KavanaughWhat's that you smell in the Supreme Court? The Hill's Morning Report - Presented by Facebook - Biden talks up bright side beneath omicron's cloud Overnight Health Care — Presented by March of Dimes — Supreme Court weighs abortion restrictions MORE. After all, conservatives are in favor of law enforcement, right? In dissent would be the four “liberals” of Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, and Sonia Sotomayor. According to this theme, liberals are in favor of the defendant.
But that kind of split is unlikely in the Gamble case. The more traditional justices differ significantly in their legal methods and often reach liberal results. For example, Roberts believes in deference to the legislature, which led him to vote to uphold the individual health insurance mandate of the Affordable Care Act. This was a liberal result. Thomas is committed to originalism, which led him to vote to uphold the prerogative of states to legalize medical marijuana. This was yet another liberal result.
Indeed, Thomas is still the sole consistent originalist on the Supreme Court. In a recent case, only he disputed the dubious claim, asserted by both the majority and the dissent, that Congress could use the commerce power to regulate all gambling nationwide. The double jeopardy case could well be decided in a way that defies the opinion molders. Perhaps we will see Ginsburg, Sotomayor, and Thomas on one side with Roberts and Kavanaugh on the other, with the remaining justices wielding the balance of power. The point is that asserting a majority of justices are “conservative” is misleading, as this Supreme Court term will show.
Robert G. Natelson, a former constitutional law professor, is a senior fellow in constitutional jurisprudence at the Independence Institute. He is the author of “The Original Constitution: What It Actually Said and Meant.”