Welcome back, Deadline: Legal Newsletter readers. I wasn’t planning on mentioning Thomas Paine in back-to-back newsletters. But then the Nicolás Maduro case happened.
Last week, Paine surfaced in Chief Justice John Roberts’ year-end report, in which Roberts celebrated the nation’s founding charters that were inspired by the revolutionary figure. The “Common Sense” author’s relevance this week is also Supreme Court-related, even if the connection is a little less obvious.
The connection comes through a 1992 Supreme Court case that could surface in Maduro’s prosecution. The high court’s ruling addressed the forcible abduction of Dr. Humberto Álvarez-Machaín from Mexico. The Mexican citizen was charged in the U.S. with participating in the kidnapping and murder of U.S. drug enforcement agent Enrique “Kiki” Camarena Salazar. He was accused of prolonging Camerena’s life to lengthen his torture and interrogation. In a 6-3 ruling led by then-Chief Justice William Rehnquist, the court said that even if the abduction was “shocking” and contrary to international law, that still wouldn’t stop Álvarez-Machaín from standing trial in the U.S.
The dissent, penned by the late Justice John Paul Stevens, argued that even if Álvarez-Machaín helped carry out “an especially brutal murder of an American law enforcement agent,” that wouldn’t justify “disregarding the Rule of Law that this Court has a duty to uphold.” Stevens quoted Paine’s warning that an “avidity to punish is always dangerous to liberty,” because it leads a country “to stretch, to misinterpret, and to misapply even the best of laws.” The justice closed his dissent with the revolutionary’s reminder: “‘He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself.’”
Safe to say that Donald Trump isn’t too worried about any precedents reaching him. That’s partly due to the Supreme Court establishing the presidential immunity precedent in the case bearing his name. At any rate, we can expect to see the Álvarez-Machaín case cited as Maduro’s litigation gets underway. The Venezuelan dictator pleaded not guilty this week to drug and weapons charges as the U.S. sets up shop in the oil-rich South American nation. (As for Álvarez-Machaín, a judge dismissed his case at trial and the Supreme Court ruled against him again in a 2004 case rejecting his right to sue the U.S. government, without any justices invoking Paine.)
While Maduro’s prosecution takes shape in New York, the justices on Friday released their first opinion in a case argued this term. It wasn’t the tariffs case, as many anticipated. Rather, it was a criminal case that Justice Sonia Sotomayor called “complicated” in her 5-4 opinion siding with a federal prisoner seeking to press a post-conviction claim. She was joined by a relatively notable (though not unprecedented) foursome of Roberts and Justices Elena Kagan, Brett Kavanaugh and Ketanji Brown Jackson. The remaining four Republican appointees dissented, led by Justice Neil Gorsuch, who accused the majority of making “serious mistakes.” Looking ahead, transgender sports participation will be the subject of a high court hearing on Tuesday. The court is considering legal questions surrounding the participation of transgender women and girls, in appeals from West Virginia and Idaho regarding the Constitution’s equal protection clause and federal and state law. The hearing follows the court’s 6-3 ruling last term in the Skrmetti case, in which the Republican-appointed supermajority upheld Tennessee’s ban on gender-affirming care for minors. Tuesday’s hearing could indicate whether the court is poised to issue two big rulings against transgender people two terms in a row. The court is also set to issue at least one more opinion on Wednesday — they don’t tell us which cases or how many are coming ahead of time — so that’s the next chance for the tariffs ruling or any others from appeals argued this term. Have any questions or comments for me? Please submit them through this form for a chance to be featured in the Deadline: Legal Blog and newsletter.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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