This week, the Supreme Court ruled unanimously that a crack offender is eligible for a sentence reduction under the First Step Act only if convicted of a crack offense that triggered a mandatory minimum sentence. Even Justice Sotomayor agreed with this result. It was a no-brainer.
Yet, the Biden Justice Department refused to defend this result after it was reached at the court of appeals level. It went so far as to “confess error” in taking the position the Supreme Court eventually embraced unanimously.
Ed Whelan calls the Court’s decision “a huge embarrassment for the Biden administration, the Biden Department of Justice, and the Office of the Solicitor General in particular” one that “powerfully exposes the falsehood that the Biden DOJ is abiding by nonpolitical norms of independence.”
The Department of Justice routinely defends criminal convictions and sentences in cases on appeal that it is almost certain to lose, yet it refused to defend this case that informed observers recognized that it was very likely to win. The only plausible explanation is that the Biden administration confessed error in this case in order to pander to the Black Lives Matter crowd and other constituencies in the Democratic Party.
The timing of the confessions of error reinforces the view that the SG bowed to political pressure from an administration desperate to please the BLM crowd:
By confessing error only on the date the government’s brief was due, SG Prelogar deprived the Court of enough time to appoint an amicus to prepare a brief defending the judgment below before the scheduled oral argument in April. The Court instead was forced to reschedule the oral argument for a special sitting in May. It is highly unlikely that a talented Supreme Court advocate like Prelogar would have pulled this stunt on her own.
Bill Otis agrees. Based on his experience at the Justice Department drafting Supreme Court briefs, he writes:
I can tell you that it’s overwhelmingly likely that a brief advancing DOJ’s original position — a brief prepared by top-notch career attorneys in the SG’s Office — was ready to be filed on the original filing date, and was pulled back at the last minute on the orders of political appointees.
Bill summarizes the story this way:
DOJ had a brief ready to go, a brief taking a position that a unanimous Court, and the great majority of legal observers, viewed as legally correct. At the literal last minute, it tanked that brief in favor of a position so flimsy it could not command a single vote — but did command, so it surely seems, the enthusiasm of the powerful pro-drug, pro-criminal contingent that, operating from behind the curtain, ordered its filing.
All of this from an administration that, as Bill reminds us, “promised ever so solemnly last year that the Justice Department would end its supposed political slant and return us to the point where, for example, the law-centered judgment of seasoned, non-political attorneys in the SG’s Office would tell the tale.”
This affair reeks of politics. And under Merrick Garland, Vanita Gupta, and the rest of the Biden DOJ gang, there’s more stench where that came from.