Opposing Supreme Court justices join forces to call out 'absurdity’

What happened

AlterNet reports that Justices Sonia Sotomayor and Neil Gorsuch criticized the government’s prosecution of Jesús Herrera-Salazar, a Mexican national convicted twice under the federal illegal-reentry law. Sotomayor called the result a “constitutional absurdity,” warning that the appellate court’s reasoning could permit repeated, potentially limitless prosecutions for being “found in” the United States.

Herrera-Salazar was found in Texas in 2020, imprisoned, and then placed under supervision that required him to remain in the United States. After authorities found him in Oklahoma, the government prosecuted and convicted him again for illegal reentry. The Supreme Court declined to hear his appeal because he had already been deported; Sotomayor and Gorsuch agreed with that procedural outcome while questioning how the second conviction could be reconciled with the Double Jeopardy Clause.

The government built the trap

The central actor was not an immigrant somehow creating a constitutional puzzle. The government controlled Herrera-Salazar’s custody, imposed the supervision conditions that kept him in the country, and brought the second prosecution.

That sequence matters. The state allegedly treated his continued presence as a new crime even though its own supervision order required that presence. Whatever legal theory supported the conviction, the reported facts expose an extreme imbalance of agency: the government set the conditions and then exercised prosecutorial power against the person bound by them.

A warning without a remedy

The justices’ statement identifies a serious problem but provides Herrera-Salazar no relief. The Court declined review because his deportation made this case an unsuitable vehicle, leaving the disputed conviction and the appellate reasoning undisturbed.

That is institutionally tidy and materially hollow. A constitutional protection has little force when judges can describe its apparent violation after the affected person has passed beyond the Court’s preferred procedural posture. The statement may guide lower courts in a future case, but Herrera-Salazar absorbed the prison sentence, second conviction, and deportation in this one.

The “unlikely allies” distraction

AlterNet emphasizes the supposedly surprising partnership between a liberal justice and a conservative one. That framing converts a coercive prosecution into a story about Supreme Court personalities.

The relevant fact is not that Sotomayor and Gorsuch can occasionally agree. It is that federal authorities obtained a second conviction under circumstances both justices found constitutionally alarming, while the judiciary ultimately supplied criticism rather than correction. Treating cross-ideological agreement as the hook makes institutional collegiality more important than the person subjected to the institution’s power.

The article’s detour into an unrelated death-penalty petition and a 2021 appearance about misinformation compounds that weakness. Those details establish a pattern of public statements, not an explanation for how the government secured this result.

Rights deferred are power preserved

Sotomayor’s warning points beyond one prosecution. If being “found in” the country can repeatedly restart criminal exposure, the government gains the capacity to turn continued presence into a renewable offense. On the reasoning she criticized, the constitutional limit does not meaningfully restrain the state; it waits for some later defendant to present a cleaner case.

That is the larger pattern: institutions acknowledge possible abuse while allowing procedural rules to protect the outcome already produced. The language of constitutional concern survives. The person subjected to government power bears the consequence. And the system calls the unresolved contradiction a reason to be more careful next time.

Thanks to Alter Net

Source: Opposing Supreme Court justices join forces to call out ‘absurdity’