A majority of the Supreme Court is unlikely to be heard in the future of the criminal justice system. While it was unmentioned at the oral argument, the case for any presidential pardon that President Trump might issue for those prosecuted by special counsel Robert S. Mueller III and convicted in federal court. Under the status quo, presumed pardonable, which only applies to federal charges. [Supreme Court considers case that could impact state prosecutions after pardons] The doctrine allows for a double Jeopardy Clause of the Constitution's Fifth Amendment, which says "the subject of the law is one of two things." In the United States, the Supreme Court of the United States is an exception to the prohibition, recognized by the Supreme Court since the 19th century. Liberal Justice Ruth Bader Ginsburg had two years ago for a fresh look at the "separate sovereigns" doctrine and described it Thursday as a "double-whammy" for criminal defendants. The colleague most outspoken in apparent agreement with his conservative Justice Neil M. Gorsuch. Most adamant on the other side of the issue were conservative Justice Samuel A. Alito Jr. and Liberal Justice Elena Kagan. Kagan asked that Louis A. Chaiten, a Cleveland attorney representing an Alabama felon, explain why the court should not apply its usual standard of letting decisions. "Part of what stare decisis is, we are really uncomfortable throwing over 170-year-old rules that 30 justices have approved just because we can kind of do it better," Kagan said . New Justice Brett M. Kavanaugh, who during his confirmation hearings was still questioned about whether he would abide by the court's established decisions, joined Kagan. The formidable task for Chaiten, Kavanaugh said, was "not just to show that it's wrong, but it's grievously wrong," egregiously wrong. "When there is uncertainty about the meaning of 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. "Purpose Justice Sonia Sotomayor said Chaiten's reliance on English law did not take into account the unique American system of governance, where both states and the federal government had an interest in their laws enforced. "Why is the doctrine wrong?" She asked. Chaiten represents Terance Gamble, who was convicted of robbery in Mobile County, Ala., In 2008 and two domestic violence charges in 2013. Under both state and federal law, such a convicted felon may not possess a firearm. But police found one in Gamble's when he was arrested in 2015. Gamble pleaded guilty to the state of affairs and sentenced to a year in prison. But federal prosecutors also brought charges, and he received a strict sentence with that conviction. Chaiten said the dual prosecutions for such a routine gun possession possession disproved contentions by government prosecutors that they were used only in extraordinary cases. Two years ago, in a related case, Ginsburg called for the court to reexamine its precedents to allow such prosecutions: "The double jeopardy is intended to shield individuals from the harassment of multiple prosecutions for the same misconduct. Current 'Separate Sovereigns' doctrine, which serves the purpose of justice. "Justice Clarence Thomas joined her in this opinion but was silent as usual during Thursday's hearing. Ginsburg, though, repeated when inquiring Department of Justice Eric J. Feigin, who was defending the doctrine. "You have to concede, will not you, that this rule, this separate sovereign rule, has been widely criticized by both academics and federal judges?" Amicus briefs in the box have been filed by those on the left and the right. Where and how do they relate to their own laws, Ginsburg and Gorsuch noted that federalism is usually invoked to protect individuals, rather than to empower governments at both levels. Gorsuch said dual prosecutions may have been more often than not presumed to be 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] "It's unhappy with the most routine prosecution is a problem," he said. Feigin said there were only about 100 cases in which federal prosecutors choose to bring the case. But he said the option was particularly important in civil rights cases. He noted federal and state charges in the Pittsburgh synagogue case and the killings in a historically black church in Charleston. He also said following Chaiten's interpretation of prosecutions would prohibit federal prosecution of overseas terrorism cases that insult or kill Americans, if foreign courts moved first. The Chief Justice John G. Roberts Jr. "Is he a race to the courthouse?" He asked Chaiten. "I mean, if a prosecution has a future – is it whoever can empanel a jury first is going to block the others?" Texas General Solicitor Kyle D. Hawkins said the status quo was working well and intended state and federal prosecutors He said 36 states, with about 86 percent of the country's population. He noted 20 states bar prosecutions when there was already a federal conviction. "The states may disagree with one another about various policy issues, but we are here to urge them to overrule their long-standing interpretation of the Double Jeopardy Clause," he said. The case is Gamble v. United States. .