Donald Trump put Neil Gorsuch on the Supreme Court to carry on the legacy of Antonin Scalia.
Lately the President keeps wondering what happened to that pick.
And Gorsuch just teamed up with the most unlikely partner on the bench to defend an illegal alien.
Gorsuch signed on to a Sotomayor broadside over a twice-deported Mexican national
Jesus Herrera-Salazar is a Mexican national whom federal authorities had already removed from the country once.
Federal prosecutors indicted him in 2020 after agents found him back inside the United States, which federal immigration law makes a crime. He pleaded guilty and served his prison sentence.
Then a federal court placed him on supervised release and ordered him not to leave the Eastern District of Oklahoma without permission.
You can probably guess where this is headed.
While he lived under those restrictions, police in the small town of Heavener, Oklahoma, stopped him. Prosecutors charged him a second time under the exact same statute, and a jury convicted him again, which earned him another prison term and another round of supervised release.
His lawyers cried double jeopardy. The US Court of Appeals for the 10th Circuit shot that down, ruling that the offense happens when authorities discover someone here unlawfully, so a second discovery can support a second case without a second illegal crossing.
The Supreme Court refused to hear his appeal. But Justice Sonia Sotomayor, an Obama appointee and the most reliably liberal vote on the Court, wrote a separate statement tearing into the government’s handling of the case.
And Justice Neil Gorsuch, President Trump’s first Supreme Court appointee, put his name right next to hers.
“From the moment he was released from custody after serving his first term of imprisonment, Herrera-Salazar was presented with a Hobson’s choice,” Sotomayor wrote in the statement Gorsuch joined. “In the Government’s eyes, whether Herrera-Salazar remained in the Eastern District of Oklahoma or left the United States, he would be breaking the law.”
The pair called the whole thing a “constitutional absurdity.” Sotomayor went further and warned that, under the government’s reasoning, prosecutors could have filed a fresh charge for every day he sat in a prison cell after the first conviction.
The odd couple of the Supreme Court keeps finding each other
Fox News reported that this marks at least the third time the two justices have joined forces this way.
In November 2024, they questioned in Baker v City of McKinney whether a Texas homeowner should eat the cost after police wrecked her house with tear gas, explosives, and an armored vehicle while hunting an armed fugitive. In February 2025, they teamed up again to question whether officers can make warrantless arrests for misdemeanors they never personally witnessed.
The full Court passed on all three cases. Sotomayor wrote all three statements. Gorsuch signed all three.
Now, in fairness, the government did paint itself into a corner here. A federal court told the man he couldn’t leave Oklahoma, and then federal prosecutors charged him for not leaving the country. Even a law-and-order conservative can scratch his head at that one.
But the fix never needed a Supreme Court lecture on the Fifth Amendment. The fix was a deportation hearing while he sat in custody and a seat on the first bus south the day he walked out of prison. Sotomayor herself noted that the government has since removed him, which makes the whole statement read a bit like a law review article nobody ordered.
And it hands open-borders activists one more talking point about “cruel” enforcement, courtesy of a Republican appointee.
Trump already ran out of patience with Gorsuch once this year
None of this happens in a vacuum. President Trump spent much of 2026 fuming at Gorsuch.
In February, Gorsuch and Justice Amy Coney Barrett joined Chief Justice John Roberts and the three liberal justices in a 6-3 decision that struck down Trump’s sweeping tariffs under an emergency powers law. Trump didn’t hold back at the White House afterward.
“I think it’s an embarrassment to their families, you wanna know the truth, the two of them,” Trump told reporters.
He kept at it. On Truth Social, Trump wrote that Gorsuch is “a really smart and good man, but he voted against me, and our Country, on Tariffs, a devastating move.” Trump also claimed the ruling cost the country $159 billion in refunds, a figure he attributed to the decision itself. At a National Republican Congressional Committee dinner, he went further still.
“Two of the people that voted for that, I appointed, and they sicken me,” Trump said.
In that same Truth Social post, Trump predicted the two justices would rule against him on birthright citizenship too. Gorsuch actually proved him wrong on that one. When the Court struck down Trump’s executive order in Trump v Barbara on June 30, 2026, Gorsuch dissented alongside Justices Clarence Thomas and Samuel Alito, while Barrett and Justice Brett Kavanaugh sided with the majority.
So credit where it’s due. Gorsuch stood with the President on the question of whether the 14th Amendment hands automatic citizenship to the children of people who broke the law to get here.
But one good vote doesn’t erase a pattern. And the pattern with Gorsuch goes back years.
In 2018, he cast the deciding vote in Sessions v Dimaya, joining the four liberals to strike down part of a federal law the government used to deport immigrants convicted of violent crimes. In 2020, he wrote the majority opinion in Bostock v Clayton County, which read gender identity into the Civil Rights Act of 1964 and gave the woke left one of its biggest legal wins of the decade. That same year he wrote McGirt v Oklahoma, which upended state criminal prosecutions across much of eastern Oklahoma, the same corner of the country where Herrera-Salazar’s saga played out.
Gorsuch’s defenders say he simply follows the text wherever it leads. He has said as much himself, insisting the divides on the Court come down to how justices read the law rather than politics. Maybe so. But the text has an awfully funny habit of leading him to Sotomayor’s side of the room whenever criminal defendants and illegal aliens show up on the docket.
The real test sits on the docket right now
The justices opened a new term this fall packed with cases on gun rights, religious freedom, and immigration detention.
That last category should keep the White House up at night. Mass deportations depend on the government’s power to detain and remove illegal aliens quickly, and the administration can’t afford a sixth vote that wanders off every time a defense lawyer frames a removal case as a civil liberties crusade.
President Trump has already told Congress to step in on birthright citizenship. “Congress should start TODAY to work on ending expensive and unfair to our Country, Birthright Citizenship,” Trump wrote after the June ruling.
But Congress can’t rewrite every Supreme Court opinion. And the voters who sent Trump back to Washington in 2024 on a promise to secure the border didn’t expect his own appointees to keep handing the other side ammunition.
Gorsuch will get plenty of chances this term to show which justice he wants to be. Sotomayor seems happy to keep the seat next to her warm.
Sources: Fox News, “Trump-appointed justice joins Sotomayor in unlikely alliance to rip DOJ’s handling of illegal immigrant case”; Al Jazeera, “Trump, JD Vance vilify ‘lawless’ Supreme Court justices over tariff ruling”; NewsNation, “Trump lashes out at Barrett, Gorsuch for ruling against tariffs”; Fox Business, “Trump slams Supreme Court justices he appointed as ‘bad for our country’ after tariff ruling”; Newsquawk, Trump Truth Social post on Gorsuch and Barrett; Bloomberg Law, “Supreme Court Backs Birthright Citizenship in Blow to Trump”; Straight Arrow News, “In rebuke of Trump, Supreme Court upholds birthright citizenship”