Thread by @jedshug

Shorter Gamble:
Alito for Court: Historical evidence leans toward dual sovereignty, but unclear. So precedent resolves.
Gorsuch: No, historical record is clear enough.
RBG: Not so interested in history.
Thomas wants to attack idea of precedent (and retire?)
Credit Alito's method.

2/ As I started to read, I thought Thomas's concurrence might be an admirable example of open-mindedness. He'd been skeptical of dual sovereignty, but was unpersuaded by historical record. Analysis of that record? One cursory paragraph.
No, he wanted to move on to his own agenda.

3/ Thomas's opinion deserves harsh criticism. That one cursory paragraph is really just an attack on Congress and the modern growth of federal power, then throwing shade at RBG.
But RBG's discussion of history is thin and disappointing. She should take originalism more seriously.

4/ But Gorsuch isn't taking originalism's risks seriously: taking complicated historical evidence on both sides and forcing it to fit one meaning. He overstates the clarity of the record.
Give Alito credit: When historical record is so mixed, turn to other methods like precedent.

5/ One more observation from @Teri_Kanefield and me last fall:
Don't believe the hype that Gamble would have much affect on any Trump World cases. No matter how the decision came out, Mueller already had to work around state double jeop. statutes anyway:
slate.com/news-and-polit…