Marcia Coyle:

Well, to be honest, I don't ever predict, but I didn't see a solid majority here to get rid of the exception to the clause, mainly because the justices focused very heavily on the practical consequences here, for example, the civil rights consequence, the Native American tribes consequence.

But, also, as the government pointed out, there could be races to the courthouse by federal and state prosecutors to see who could file first if there was no exception, that it would deter cooperation among law enforcement, and also that criminal defendants might try to manipulate separate sovereigns to see where they might get the best trial outcome.

So, they were very focused on that and concerned. And also, even though the defendant focused a lot on the original understanding, Justice Kagan pointed out, some justices on the bench believe that's the, she said, alpha and omega of every constitutional question. But others do not.

She is not an originalist. And she said, you're going to have to give me something more before I'm willing to overturn a 170-year-old precedent.

And, interestingly enough, one of the originalists on the court, Justice Kavanaugh, he said to the defendant's lawyer, yes, stare decisis, standing by precedent, is part of that original understanding. And you're going to have to show this precedent is not only wrong, but egregiously wrong, and that's a high bar.