Justice Elena Kagan. Credit: Diego M. Radzinschi / NLJ

Some U.S. Supreme Court justices think “original understanding” is the “alpha and omega of every constitutional question,” Justice Elena Kagan said Thursday, but “there are other people on this bench who do not.” She and others indicated they would need more justification for throwing out a court-created doctrine in a case that has potential consequences for special counsel-related prosecutions.

“Your argument seems, frankly, a little bit one-note,” Kagan told Jones Day partner Louis Chaiten at argument in the case Gamble v. United States. “You're going to have to give me more.”

Chaiten is counsel to Terance Gamble, an Alabama man who was convicted and sentenced in state and federal prosecutions for the same crime: felon in possession of a firearm. Gamble is asking the justices to overrule a 170-year-old doctrine that is known as the “separate sovereigns” exception to the Fifth Amendment's double jeopardy clause. That clause prohibits more than one prosecution or punishment for the same offense.

Gamble's case has drawn considerable attention because of its possible import for Special Counsel Robert Mueller's investigation and prosecutions of Russian interference in the 2016 election and involvement of the Trump campaign. Elimination of the separate sovereigns exception could bar states from pursuing certain prosecutions under their state laws. Mueller's investigation did not come up during Thursday's arguments.

During the 80-minute argument, Chaiten emphasized that the separate sovereigns exception was inconsistent with the original meaning of the double-jeopardy clause as well as its text and purpose. But his original meaning argument ran up against what Justice Brett Kavanaugh, himself a self-described originalist, said was “another part of the original understanding—stare decisis” (standing by precedent).

Chaiten has to show the exception is “grievously wrong or egregiously wrong,” Kavanaugh told him during one exchange. And given the uncertainty that historical evidence supports Gamble's position, Kavanaugh questioned whether Chaiten could clear that “high bar.”

Justice Samuel Alito Jr. probed how Chaiten's interpretation of the clause would apply to foreign prosecutions. If American citizens were murdered by terrorists in a foreign country and the terrorists were acquitted after a foreign prosecution, Alito asked, “is it your position they can't be prosecuted here?”

Chaiten replied that under the original understanding of the double-jeopardy clause, whether America could prosecute those terrorists would depend on whether an American court recognized the concurrent jurisdiction of the foreign court.

Justice Stephen Breyer noted an amicus brief filed by Native American Indians, who said the separate sovereign exception was important to successive prosecutions of domestic violence crimes on reservations.

But Chaiten said the potential for successive prosecutions and punishments has increased significantly with the federalization of many more crimes.

Assistant to the Solicitor General Eric Feigin and Texas Solicitor General Kyle Hawkins told the justices that successive prosecutions sometimes were necessary. Feigin pointed to Native American domestic violence crimes as well as the need for the federal government to step in at times to prosecute civil rights law violations.

Justice Ruth Bader Ginsburg questioned the government's heavy reliance on federalism for its defense of the exception.

Federalism, Ginsburg said, usually is looked to as protection of the individual, but the government is using it to defend state and federal freedom to prosecute the individual. Justice Neil Gorsuch added that he could not think of another case where federalism was used to allow “more intrusion” on individual liberty.

Feigin warned that overruling the exception would result in a first-to-file race to courthouses by prosecutors; would deter cooperation between law enforcement; and would allow criminal defendants to play one sovereign against another.

Read more:

Jeff Sessions Lauded New 'Originalist' Majority at Supreme Court. Not So Fast

Gorsuch, Embracing Originalism, Mustered No Support in Solo Dissent

$400K for SCOTUS Clerks: A Bonus Too Far?

Former SCOTUS Clerks Dominate the Ranks of Trump's Judicial Nominees