Trump-Appointed Supreme Court Justice Makes ‘Alliance’ with Liberal Colleague

An unexpected alliance between two Supreme Court justices from opposite sides of the political spectrum is raising serious questions about the Justice Department’s handling of an immigration case, with both warning that federal prosecutors may have crossed a constitutional line.

Justice Neil Gorsuch, appointed by President Donald Trump, joined liberal Justice Sonia Sotomayor in criticizing the government’s decision to prosecute a previously deported Mexican national twice for being unlawfully present in the United States.

What makes the case particularly unusual is that the man was prosecuted a second time after a federal court had ordered him not to leave the area where he was living.

The justices questioned how the federal government could legally prevent someone from leaving the country and then prosecute him again for remaining inside it.

In a statement released Tuesday, October 13, Sotomayor described the situation as a “constitutional absurdity,” with Gorsuch joining her criticism.

The unusual agreement highlights a principle that can unite conservative and liberal judges: Even when the government is enforcing immigration laws, prosecutors must respect the constitutional rights of the people they charge.

The case centers on Jesus Herrera-Salazar, a Mexican national who had previously been deported from the United States.

In 2020, federal prosecutors charged him with being found in the country after removal, a violation of federal immigration law.

Herrera-Salazar pleaded guilty, served a prison sentence and was subsequently placed on supervised release.

As part of that supervision, a federal court prohibited him from leaving the Eastern District of Oklahoma without authorization.

But while those restrictions were still in effect, local police stopped him during a traffic encounter in Heavener, Oklahoma.

Federal authorities then charged him again under the same immigration statute.

A jury convicted Herrera-Salazar, resulting in another prison sentence and an additional period of supervised release.

His attorneys challenged the second prosecution, arguing that the government had effectively punished him twice for the same continuing offense.

The argument centered on the Fifth Amendment’s Double Jeopardy Clause, which protects individuals against being prosecuted or punished multiple times for the same offense.

The U.S. Court of Appeals for the 10th Circuit rejected his challenge.

The appeals court concluded that being found unlawfully in the United States can constitute a separate offense when authorities discover a person’s unlawful presence on another occasion, even without proof of a new illegal border crossing.

Herrera-Salazar appealed to the Supreme Court, hoping the justices would overturn that interpretation.

The nation’s highest court declined to hear his case.

But the decision not to intervene did not mean every justice agreed with the government’s actions.

Sotomayor issued a separate statement, joined by Gorsuch, identifying what they considered serious problems with the second prosecution.

She pointed out that Herrera-Salazar had already been convicted for unlawfully remaining in the United States and was then ordered to stay within a specific federal judicial district.

That left him facing conflicting legal obligations.

Remaining in the country risked another immigration prosecution, while leaving the area without permission could violate the conditions of his supervised release.

In the statement, Sotomayor described that situation as a “Hobson’s choice,” meaning an apparent choice in which no acceptable alternative exists.

The two justices also questioned whether the government’s interpretation of the immigration statute could permit repeated prosecutions for what was essentially one uninterrupted period of unlawful presence.

Their concern was not whether Herrera-Salazar originally violated immigration law.

He had pleaded guilty to that offense.

Instead, the dispute focused on whether prosecutors could treat his continued presence as a new criminal offense after the government had expressly restricted his ability to leave.

The distinction matters because the Constitution places limits on how federal authorities investigate, prosecute and punish individuals.

Those protections apply in criminal proceedings regardless of a defendant’s citizenship or immigration status.

Gorsuch’s decision to join Sotomayor is especially noteworthy because the two justices frequently approach constitutional disputes from different judicial philosophies.

Gorsuch, appointed by Trump in 2017, is widely associated with textualism and originalism, approaches that emphasize the Constitution’s text and its original public meaning.

Sotomayor, appointed by former President Barack Obama in 2009, is generally considered part of the Court’s liberal wing.

Yet both have previously expressed concerns about excessive government authority.

In November 2024, the justices joined in questioning whether homeowners should be compensated when police extensively damage private property while pursuing criminal suspects.

That dispute involved a Texas woman whose house was severely damaged during a police operation to capture an armed fugitive.

Although officers were carrying out legitimate law enforcement duties, the justices questioned whether an innocent property owner should be forced to bear the entire financial burden.

The pair also joined forces in February 2025 over questions involving warrantless arrests for misdemeanor offenses.

That case raised concerns about police authority to arrest someone without a warrant for conduct officers had not personally witnessed.

In both disputes, the Supreme Court declined review, but the justices used separate statements to draw attention to unresolved constitutional questions.

The latest immigration case follows a similar pattern.

Sotomayor and Gorsuch did not issue a binding decision overturning Herrera-Salazar’s conviction.

They also did not demand that the government abandon enforcement of immigration laws.

Instead, they identified concerns about the legal reasoning used to justify the second prosecution.

Sotomayor explained that she agreed with the Court’s decision not to hear the case partly because Herrera-Salazar had already been removed from the United States.

She also expressed hope that the unusual circumstances would not arise again.

That means the 10th Circuit’s decision remains in place, and the Supreme Court has not established a new nationwide rule governing repeated prosecutions under the immigration statute.

The case nevertheless offers an important reminder about the limits of federal authority.

A government committed to enforcing immigration laws must also operate within the constitutional safeguards that apply to criminal prosecutions.

Those safeguards are particularly important when the same government imposes restrictions that may prevent someone from complying with another legal requirement.

For Gorsuch, the case reflects a familiar concern about government power and the importance of applying constitutional limits consistently.

For Sotomayor, it raises questions about fundamental fairness when federal authorities pursue repeated criminal charges under unusual circumstances.

Their agreement does not erase their differences on immigration policy or constitutional interpretation.

But it demonstrates that judges can reach similar conclusions about the limits of government power even when they disagree on many other legal and political questions.

And while the Supreme Court has declined to revisit Herrera-Salazar’s conviction, the unusually pointed statement from two ideologically different justices could influence how lower courts approach similar disputes in the future.