Gamble pleaded guilty to the state version of the charge in Alabama state court, serving a one-year sentence. The matter seemed to be finished. But the Alabama U.S. Attorney's Office filed the federal version of the charges against Gamble -- same crime, same conduct. Gamble argued that the Fifth Amendment's prohibition of double jeopardy barred this second prosecution. Lower courts, however, have ruled against Gamble, concluding that the "dual sovereign" doctrine allows separate sovereigns -- in this case Alabama and the United States -- to pursue separate prosecutions for the same crime.

This summer, Gamble succeeded in having the Supreme Court agree to review his challenge to the dual sovereign doctrine. Today the Court will hear oral arguments in the case. UCLA law professor Stuart Banner and I have filed an amicus brief urging the Court to rule for Gamble.

And from the brief: 

At the Founding and for several decades thereafter, a prosecution by one sovereign was understood to bar a subsequent prosecution by all other sovereigns. Dual sovereignty is thus contrary to the original meaning of the Double Jeopardy Clause. Defendants today enjoy a weaker form of double jeopardy protection than they did when the Bill of Rights was ratified.

In conclusion: 

Our brief not only makes an explicit point about the dual sovereign doctrine, but a broader implicit point about originalist interpretation of the Constitution. Sometimes it is argued that an originalist approach necessarily favors government power at the expense of individual rights, particularly in criminal cases. Our petition shows the contrary can be true. As we conclude: "If judges can weaken constitutional protections for policy reasons that seem pressing at the time, one wonders what the Constitution is for."

Agreed on all points.  As I've noted on this blog previously, the separate sovereigns doctrine seems like something the Court just made up.  Perhaps there is an originalist foundation for it, but Professors Cassell and Banner make a strong argument that there is not.

It maybe premature but I venture this prediction: unless the government can establish a persuasive originalist justification for the doctrine at oral argument, it will lose.  It's an astonishing development, in terms of the status of originalism, if this is true.

UPDATE:  Not so fast, says Amy Howe at SCOTUSblog after the argument:  Majority appears ready to uphold “separate sovereigns” doctrine.