Scalia's tequila remark launches new term

By Bill Mears
CNN Washington Bureau

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WASHINGTON (CNN) -- Justice Antonin Scalia opened the Supreme Court's new term Tuesday by questioning whether a man deported to Mexico after a drug conviction would be "abstaining from tequila" for fear of violating his U.S. parole terms.

The remark came as justices heard an immigration case involving a Texas man, Reymundo Toledo-Flores, who was deported in April after being convicted of illegally entering the United States.

At the time, Toledo-Flores was under supervised release, a form of parole, for a 2002 cocaine possession conviction. He served seven months in a Texas prison on that charge and was deported after serving his time.

Attorney Timothy Crooks argued to the justices that his client's supervised-release terms left him under U.S. jurisdiction even while on Mexican soil, technically leaving him vulnerable to deportation back to the United States if he violated his parole.

Scalia responded with incredulity.

"No one thinks your client is abstaining from tequila for fear of being deported," he said. Supervision "is impossible once he leaves the country," he added. "This is an ingenious exercise of the conceivable."

Neither Crooks nor the other justices reacted visibly to Scalia's remarks, and there was no immediate reaction from immigrant rights activists, many of whom were in the courtroom.

Other justices skeptical

Several colleagues, including Chief Justice John Roberts and Justice David Souter, were equally skeptical of Crook's arguments. Souter noted that Toledo-Flores "would have to violate the law by reentering the U.S." to face any penalty.

Scalia's remarks and actions have provoked controversy in the past.

In March, he made an Italian hand gesture when confronted by a reporter outside a Boston church. Some interpreted him as using his middle finger, which he did not, but both gestures are considered vulgar in some quarters.

The 70-year-old jurist refused to recuse himself from a case involving Vice President Dick Cheney, despite going duck hunting with the vice president in 2003 when the court was considering an appeal involving Cheney's energy task force.

And he told a 1996 audience that many Christians in the United States attract the "scorn of the sophisticated world" for believing in religious miracles.

Scalia had a man who was heckling him removed during a 2004 speech in Washington. That same year, a U.S. marshal guarding the justice confiscated a reporter's tape recorder and erased comments made at a Mississippi school. The Justice Department found the marshal had violated the law, and Scalia apologized, but denied ordering seizure of the device.

Tuesday's arguments came in appeals by Toledo-Flores and another man, Jose Lopez, who is facing deportation after a 1997 conviction for aiding and abetting the possession of cocaine in South Dakota.

State, federal conflict

Their cases highlight a conflict between state and federal laws over the seriousness of drug crimes involving immigrants. (Case summary)

Lopez entered the United States illegally in 1985 and later gained permanent residency. He and his wife, a legal resident, have two children, both U.S. citizens. He was ordered deported in 1998, but that order was stayed pending the high court's ruling.

Under federal law, the charges against both men are misdemeanors. But the federal Board of Immigration Appeals concluded they committed "aggravated felonies" and were eligible for deportation.

Arguments by the government's lawyer met with skepticism from justices as well.

Deputy Solicitor General Edwin Kneedler countered that the court should look to various state laws, where the majority of criminal cases are prosecuted, not some "supposed" uniform standard of federal statutes. Souter called the Bush administration's position "very strange."

"The problem is that state law and federal law are at odds over the gravity of the offense," he said.

The high court's new term officially began Monday, but no arguments were held because of the Yom Kippur holiday.