Many VC readers have read elsewhere about Justice Scalia’s “tequila” remark at oral argument on Tuesday. I agree with David Lat that the concern is misplaced.
First, some background. The petitioner had been convicted of possessing cocaine, served his sentence, and was then deported to Mexico. At oral argument, the question was whether his petition was moot because he was living in Mexico and was trying to challenge the criminal sentence aleady served in the United States. Counsel for the petitioner argued that the appeal wasn’t moot because technically petitioner was still governed by the terms of post-sentence supervised release. Supervised release is like probation after a prison term; it’s essentially a contract, in which a defendant agrees that he will abide by terms of release in exchange for being let out of prison earlier. If he violates a term of release, he can be sent back to prison (at least theoretically). The petitioner argued that a term of release was that he couldn’t have any alcohol, and it was at least possible that the federal court in the U.S. could find out that he was having alcohol in Mexico and seek to have him returned to prison in the U.S. Here’s the excerpt from the transcript, with emphasis mine:
MR. CROOKS: Mr. Chief Justice and may it please the court. I would first like to address the government’s contention that Mr. Toledo-Flores’ appeal is moot. His appeal of his sentence is not moot primarily because he is still subject to the sentence that is the subject of that appeal. Even though Mr. Toledo-Flores was released from prison on April 21st of this year, and deported to Mexico, he is still subject to the supervised release portion of his sentence because supervised release is not automatically extinguished by deportation.
CHIEF JUSTICE ROBERTS: But there is no supervised release of people outside the United States.
MR. CROOKS: There is no supervision of people outside the United States, Mr. Chief Justice, but he is still subject to the jurisdiction of the District Court and still subject to theconditions of supervised release that are not dependent upon supervision.
CHIEF JUSTICE ROBERTS: Like what?
MR. CROOKS: For example, he should not use alcohol, he should not associate with persons.
CHIEF JUSTICE ROBERTS: What’s going to happen to him if he does that?
MR. CROOKS: If the District Court learns about that he could be violated and he could face up to a year more in prison.
CHIEF JUSTICE ROBERTS: Has anything like that ever happened before to people subject to supervised release who have then beem deported? It would be the first time if the District Court did that, right?
MR. CROOKS: There have been instances in the case law where people on supervised release have been extradited back from foreign countries based on violations of their supervised release. But the point is under the statutory scheme Mr. Toledo-Flores is still subject to the District Court’s jurisdiction.
A few seconds later, Justice Scalia interjects to to say that such a remote possibility wasn’t sufficient in his view to keep the petition from being moot. Scalia’s point was that no one actually expected the terms of supervised release to be followed after a person is deported. When a person is deported where there is no probation officer, the terms of supervised release are understood to be just form with no substance. Here is what Scalia said:
JUSTICE SCALIA: We have a case involving standing which says that — you know, the doctrine of standing is more than an exercise in the conceivable. And this seem to me 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, or is going — is going to apply having been deported from the country for criminal offenses, he is going to apply to come back — and look, these are ingenious exercises in the conceivable. This is just not the real world.
Justice Scalia certainly isn’t one to pull punches here: as usual at argument, he is telling counsel exactly what he thinks. But is Scalia’s tequila line really so objectionable? The petitioner’s own lawyer was arguing that petitioner might drink alcohol in Mexico and be hauled back to serve more time on cocaine charges in the United States; Justice Scalia was saying that the latter seemed completely unrealistic. It’s true that Justice Scalia did name a particular type of alcohol, rather than just refer generically to “alcohol.” But the alcohol he mentioned is often celebrated as Mexico’s National Drink, so it’s not clear to me why picking Mexico’s National Drink as an example of the alcohol his own lawyer suggested he might drink in Mexico is necessarily offensive. Maybe I’m missing something, but I’m not aware of any stereotype by which residents of Mexico who chose to drink alcohol are considered worse or less desirable for picking the National Drink as compared to beer or wine or some other hard alcohol. I hope I’m not just being deaf to a known stereotype, and if I am I hope you’ll point that out in the comment thread, but I don’t see why this was so offensive when understood in context.