Sotomayor–Gorsuch Surprise Alliance Shakes Up Supreme Court Immigration Case—What to Know

WASHINGTON — In a rare cross-ideological salvo, Supreme Court Justices Sonia Sotomayor and Neil Gorsuch united Tuesday to blast the government’s handling of a Mexican immigrant’s double prosecution, warning lower courts to “avoid the constitutional absurdity” they say plagued the case of Jesús Herrera-Salazar. The justices issued the rebuke as the Court declined to hear Herrera-Salazar’s appeal. He had already been deported, but Sotomayor—joined only by Gorsuch—argued the Fifth Amendment’s Double Jeopardy Clause should have shielded him from a second conviction for illegal re-entry after federal officials themselves ordered him to remain in the United States while on supervised release. Key points • Continuous-conduct crime: Herrera-Salazar was first sentenced in Texas in 2020 for being “found in” the U.S. After prison, he was required to stay stateside; when agents discovered him in Oklahoma, prosecutors charged him again under the same statute. Sotomayor wrote that treating each discovery as a new offense “defies the logic” of a crime defined by uninterrupted presence. • Potential ripple effects: Immigration attorneys say the opinion, though non-binding, arms defendants with fresh language to challenge serial re-entry prosecutions, especially when supervised-release orders conflict with removal laws. • Bipartisan spotlight: Sotomayor, an Obama appointee, and Gorsuch, Trump’s first pick for the Court, have occasionally teamed up on criminal-procedure issues, but their latest concurrence underscores growing unease across the ideological spectrum about aggressive immigration enforcement tactics. Why it matters The Department of Homeland Security relies heavily on the “being found in” charge to deter repeat border crossers. If future courts adopt Sotomayor and Gorsuch’s logic—that the offense is continuous and cannot be sliced into multiple prosecutions—federal charging strategies and plea-bargain leverage could shift dramatically. What happens next While the Supreme Court passed on Herrera-Salazar’s petition, defense lawyers are expected to cite Tuesday’s statement in active appeals, particularly in the Fifth, Tenth, and Ninth Circuits where illegal-reentry cases dominate dockets. Prosecutors may respond by refining indictment timelines or accelerating removal proceedings to avoid supervised-release limbo. Bottom line The Sotomayor-Gorsuch concurrence signals that, even in a politically charged immigration climate, the Court’s liberals and conservatives can find common ground on core constitutional protections. Their warning shot leaves little doubt: double jeopardy arguments in immigration prosecutions are far from settled law.