“Tequila Mockingbird”

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That’s the title of Dahlia Lithwick’s recent Slate coumn, in which she says:

The first case of the term is a pair of consolidated immigration cases:Lopez v. Gonzales, (out of the 8th Circuit Court of Appeals) and Toledo-Flores v. United States (out of the 5th). Both cases turn on a question of statutory interpretation: Lopez and Toledo-Flores were noncitizens convicted for drug crimes that were felonies under their respective state laws, but misdemeanors under federal law. The Immigration and Nationality Act provides that noncitizens convicted of “aggravated felonies” can be deported. The question for the courts is whether “aggravated felonies” should include convictions that are felonies under state law, but only misdemeanors under federal law.

Lopez was arrested in South Dakota for cocaine possession. The INS, appeals court, and the 8th Circuit all agreed that his state drug felony supports deportation under the immigration laws. Toledo-Flores was convicted of the Texas state felony of possessing 0.16 grams of cocaine. The 5th Circuit affirmed his deportation.

Most of this morning’s argument is a deathly parsing of the language in the Immigration and Nationality Act’s definition of “aggravated felony,” 8 U.S.C. § 1104 (43) (B), which sends us back to the definition of a “drug trafficking crime” under 18 U.S.C. § 924 (c). But in order to parse that, you need to close-read the Controlled Substances Act (that’s 21 U.S.C. § 802, for those of you who didn’t glaze over at the first sight of a §). …

…Timothy Crooks is the assistant federal public defender representing Reymundo Toledo-Flores and:as his client has already been deported to Mexico:he’s in the unenviable position of having to persuade the justices that his case isn’t moot. Crooks states that even though his client is no longer in the United States, “he is still subject to the supervised release portion of his sentence.” An incredulous Chief Justice John Roberts wonders how a deportee can possibly be subject to his probation conditions if there is no one to supervise him. Crooks replies that his client is still not allowed to “use alcohol, or associate with persons … ” (He is interrupted here.)

Crooks adds that there are cases in which deportees have been extradited back to the United States based on violations of their supervised release, and that he may in the future want a visa to visit the United States, since his children live here. Justice Scalia says that “the doctrine of standing is more than an exercise in the conceivable. … Nobody thinks your client is really, you know, abstaining from tequila down in Mexico because he is on supervised release in the United States.”

Nobody laughs. But then, nobody winces or flinches, either. Somehow, a remark that would have flattened us had a Souter spoken it is just a solid day at the office for Scalia. I have no idea where the tequila comment should register on the nation’s macaca-meter. The more interesting question is about Scalia’s deliberate carelessness with language, his sense that he is somehow above the sorts of linguistic delicacy the rest of us expect in our dealings with others. Indeed, he seems to think it’s his obligation to be ever more reckless with his words, perhaps because he’s about the only guy left who faces no consequences for his rhetorical body-slams.

A Bird’s Nest has some additional analysis.

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