Bench Memos

Law & the Courts

Biden’s Politicized Solicitor General’s Office Endures Embarrassing Defeat

The Supreme Court’s ruling today in Terry v. United States is a huge embarrassment for the Biden administration, the Biden Department of Justice, and the Office of the Solicitor General in particular. On top of other actions, it powerfully exposes the falsehood that the Biden DOJ is abiding by nonpolitical norms of independence.

In Terry, the Court held 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. Justice Thomas wrote the majority opinion for eight justices. Justice Sotomayor agreed with the entirety of Justice Thomas’s interpretation of the First Step Act. (She declined to join the background part of Thomas’s opinion and wrote separately to offer her thoughts on the consequences of the decision.)

How, you might wonder, can the Supreme Court’s unanimous affirmance of a federal criminal sentence be a huge defeat for the Biden administration?

The answer is that the Biden administration, which inherited defense of this case from the Trump administration, informed the Court on March 15—the very date the United States’ brief on the merits was due—that it would not defend the judgment below and that it was confessing error in the case.

Both the confession of error and the timing of the confession were extraordinary. 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 confession of error reinforces this explanation and makes it all but certain that acting Solicitor General Elizabeth Prelogar caved at the last minute to political pressure from within the Biden administration. 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.

In its unanimous ruling today affirming the judgment below on which the Biden administration had confessed error, the Court briskly dismissed the Biden administration’s arguments as “sleight of hand” and concluded that the text of the statute unambiguously supported the judgment below. It is an extraordinary rebuke for the Supreme Court to rule 9-0 against the Solicitor General on a question on which the SG has confessed error.

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