On Monday, the U.S. Supreme Court handed down a decision in Terry v. United States. The holding is not particularly novel. The Court upheld Terry's sentence for a drug offense because recent changes to mandatory minimum sentencing did not apply to the offense he was convicted of. As Ed Whelan explained in the National Review, this decision is an embarrassment for the Biden Solicitor General because the DOJ decided not to defend the lower court's decision at the last minute.
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.
Biden DOJ panders to leftist racemongers by confessing error, refuses to defend sentence. But unanimous Supreme Court rules that sentence was lawful. Huge embarrassment for SG's office. But media oddly quiet. https://t.co/qEvjrTrUZ1— Ed Whelan (@EdWhelanEPPC) June 15, 2021
Rebuking the Solicitor General's decision, Justice Clarence Thomas opined:
To avoid this straightforward result, petitioner and the United States offer a sleight of hand. Petitioner says that the phrase “statutory penalties” in fact means “penalty statute.” The United States similarly asserts that petitioner is eligible for a sentence reduction if the Fair Sentencing Act changed the “penalty scheme.” But we will not convert nouns to adjectives and vice versa. As stated above, “statutory penalties” references the entire phrase “a violation of a Federal criminal statute.” It thus directs our focus to the statutory penalties for petitioner’s offense, not the statute or statutory scheme.
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.
The Solicitor General's actions in the case illustrate the Biden Administration's willingness to abdicate to leftist activists' demands with no regard for the rule of law.