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

U.S. Supreme Court Chief Justices stand on the House floor ahead of the annual State of the Union address by U.S. President Joe Biden before a joint session of Congress.

Supreme Court Justices Sonia Sotomayor, a liberal, and Neil Gorsuch, a conservative, united Tuesday to denounce what they called “serious constitutional problems” in the government’s prosecution of a Mexican national for illegally reentering the United States. It’s the latest example of the unlikely pairing teaming up as allies despite being on opposing sides.

Their synonymous viewpoints emerged when both agreed it was difficult to see how Jesus Herrera-Salazar’s treatment aligned with double jeopardy protections. “Should circumstances like these arise again, I encourage courts to avoid the constitutional absurdity that occurred here and give the Double Jeopardy Clause its full weight and meaning,” Sotomayor wrote in her assertion.

The Supreme Court rejects many requests to hear cases, and on Tuesday, it declined to take up Herrera-Salazar’s appeal along with dozens of others. Sotomayor and Gorsuch agreed with their colleagues that the case should not have been taken, pointing out that Herrera-Salazar was already deported.

Herrera-Salazar was charged with returning to the U.S. illegally following deportation. He was first discovered in Texas in 2020 and sentenced to prison time. Upon release, he was under supervision and was required to remain in the U.S. under the government’s watch. After being found in Oklahoma, he was charged and convicted of illegal reentry for the second time, per The Hill.

Although Sotomayor acknowledged that a federal appeals court disagreed with her view that Herrera-Salazar’s second conviction was “difficult to square” with double jeopardy protections, she warned that the court’s reasoning would allow “a person in Herrera-Salazar’s shoes” to face repeated, potentially limitless “found in” charges without violating the Constitution.

With Gorsuch joining her, Sotomayor argued that courts should “avoid the constitutional absurdity that occurred here” in similar cases and give the Double Jeopardy Clause “its full weight and meaning.”

This marks the second consecutive week Sotomayor has spoken out on the court’s order list as the justices begin their new term. Last week, she issued a solo statement in a death penalty case, arguing that it deserved public scrutiny regardless of whether it would go on to be reviewed by the Supreme Court, MS Now reports.

Her statement addressed Mulkey v. Alabama, the case of Steven Mulkey, who was sentenced to death for killing Ching and Siu Mei Kao, an elderly couple, in 2018. According to the state, the killings stemmed from “a dispute over thirty dollars’ worth of yard work.”

In his Supreme Court petition, which the justices denied and Sotomayor agreed with the ruling, Mulkey’s lawyers argued that his constitutional rights were violated because the trial judge publicly sanctioned and jailed a prospective juror in front of the jury pool for running late, and the judge didn’t inquire about how the other jurors or potential jurors would be impacted.

Sotomayor recounted that two potential jurors expressed fear of being punished for voicing their opinions. Although the judge assured them they would face no such punishment, Sotomayor noted that the assurance was not given in front of the broader jury pool, as it had been during an earlier reprimand. Consequently, she said, it remained unclear how many other potential jurors “felt similarly but did not share their fear because they were not called for individual questioning.”

Gorsuch and Sotomayor have demonstrated collegiality before. In 2021, the two justices made a rare joint public appearance to warn that the spread of misinformation on social media posed an urgent threat to national security.

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