Supreme Court Justices Sonia Sotomayor and Neil Gorsuch joined forces to highlight what they called an “absurd” criminal case, in the latest pairing of the Obama and Trump appointees on what they have both seen as government abuses — even when their colleagues have stayed silent.

The most recent example came Tuesday in the case of Jesus Herrera-Salazar. Like most people who petition the justices to review their cases, he was rejected on the court’s latest order list. But Sotomayor nonetheless felt the need to speak out about the “constitutional absurdity that occurred” in his case, and Gorsuch joined her.

Herrera-Salazar was charged with being “found in” the United States following his removal. After he pleaded guilty and served prison time, he was ordered not to leave the Eastern District of Oklahoma while on supervised release. But he was then pulled over in a traffic stop and charged with the same crime again. He was convicted by a jury and sentenced to new terms of imprisonment and supervised release.

“Because I hope the facts of this case are anomalous and because Herrera-Salazar has since been removed from the United States, I concur in the Court’s decision not to grant review in this case,” Sotomayor wrote, joined by Gorsuch, in the statement that appeared on the court’s order list announcing the latest action on pending petitions.

But she explained that she wrote “to underscore the serious constitutional problems that plague the Government’s treatment of Herrera-Salazar.”

She called his second prosecution “difficult to square” with the Constitution’s double jeopardy protections, while noting that a federal appeals court disagreed with her. But under the appeals court’s rationale, the justice observed, “a person in Herrera-Salazar’s shoes can be subjected to repeated, limitless ‘found in’ charges without offending the Constitution.”

By that logic, she went on, the government could have charged him with a new crime “for each day that he was ‘found in’ prison while serving his sentence for the first conviction.” Though that seems “absurd,” Sotomayor wrote, she said it’s a “logical outgrowth” of the government’s position.

Joined by Gorsuch, the justice concluded that, if a situation like this arises again, courts should “avoid the constitutional absurdity that occurred here and give the Double Jeopardy Clause its full weight and meaning.”

The statement marks the second week in a row that Sotomayor has spoken out on the order list as the justices start their new term. On the first day of the term last week, she issued a solo statement in a death penalty case that she similarly thought warranted spotlighting even if it didn’t warrant Supreme Court review.

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