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July 22, 2010

SCOTUS appoints former Alito clerk to defend Eighth Circuit's work in Pepper

As detailed in this new post by Lyle Denniston over at SCOTUSblog, the "Supreme Court on Thursday named a New York City lawyer and former Supreme Court clerk to argue the side of a criminal sentencing case that the federal government normally would defend."   Here are the basics:

The government ... has sided with the prison inmate challenging his sentence in Pepper v. U.S. (09-6822) — a case granted review near the end of last Term and not yet scheduled for oral argument.  At issue in the case is whether, under federal law, a judge imposing a new sentence after an earlier one was set aside is barred from reducing the sentence as a way to give the individual credit for having made efforts to rehabilitate himself after the initial sentence was imposed.

The Justice Department now takes the position that the judge may do so.  The Department had urged the Court to send the case back to the Eighth Circuit Court to consider the Department’s present position, but the Supreme Court went ahead and granted review June 28 of an appeal by the Iowa prisoner, Jason Pepper.

In Thursday’s order, the Court chose Adam G. Ciongoli to enter the case as a friend-of-the-court and present a merits brief and an oral argument that a judge lacks that authority.  Ciongoli, now engaged in corporate practice and teaching part-time at Columbia Law School, is a former law clerk to Justice Samuel A. Alito, Jr.

Because of the messy record, I thought Pepper might eventually become a DIG case.  But now that SCOTUS has appointed counsel to defend the Eighth Circuit's approach, I suspect we will get some kind of ruling in Pepper.

UPDATE:  A helpful reader alerted me to the interesting coincidence that, also today, the district judge in Iowa who sentence Jason Pepper to serve more prison time today released him pending the disposition of his SCOTUS appeal.  The brief order to this effect can be downloaded below:

Download Pepper order

July 22, 2010 at 09:36 PM | Permalink


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Big surprise! Look to an Alito protegee to defend a pro-prosecution, pro-government position that even the Dept of Justice realizes is not correct. Anyone care to wager how Alito votes on this one?

Posted by: anon | Jul 22, 2010 10:23:23 PM

Alito is the Circuit Justice in cases from the Eighth Circuit, and this was such a case. As a result, Alito would take the lead in recommending a person to argue the case.

Posted by: Alan Hopp | Jul 23, 2010 2:35:47 AM

I can wager, given Alito's past sentiments (which are different from Scalia's in various cases, no Scalito here), but I also think Alan is right. I had a knee-jerk reaction myself but the shoe was on the other foot in other cases, so thought better of it.

Posted by: Joe | Jul 23, 2010 10:49:53 AM

The knee-jerk reaction is the correct one re Alito. Of all the Justices, he is by far the most predictable.

Posted by: seahorse | Jul 23, 2010 11:40:57 AM

seahorse is correct, according to SCOTUSBlog:

"The most consistently 'conservative' Justice on the Court – if conservative is interpreted to mean expressing a consistent confidence in the government and narrow construction of the Constitution – is instead Justice Alito. He was the most reliable vote for the position of the government, particularly in criminal cases."

The only problem I have with SCOTUSBlog's description is that it should say "narrow construction of the Constitution [EXCEPT IN CRIMINAL CASES OR CASES INVOLVING A CRIMINAL DEFENDANT]." See, e.g., Comstock where Alito concurs to express his more narrow view of the N&P Clause, but, alas, finds in favor of the government the fed's ability to indefinitely confine an individual after he has served his sentence.

Posted by: DEJ | Jul 23, 2010 12:29:00 PM

Obviously, then, the way for Obama to get Alito's vote on upholding health care reform is to include criminal penalties for non-compliance.

Posted by: . | Jul 23, 2010 1:06:27 PM

LOL... maybe that would work.

Posted by: DEJ | Jul 23, 2010 2:04:19 PM

Its prety clear that Pepper isn't in the same district of Iowa as Judge Reade, who gave the Meat packing plant defendent 27 yrs...He would have got a guideline sentence....

Posted by: Abe | Jul 23, 2010 3:38:51 PM

Actually, Abe, Pepper involves the same district and same judge as Rubashkin. But initially Pepper pulled Judge Bennett, which is why he had a low sentence to begin and only got CJ Reade and a longer sentence after two 8th Circuit reverals of Bennett.

Posted by: Doug B. | Jul 23, 2010 4:14:21 PM

Alito's vote might be easy to determine as much as Ginsburg vote in a sexual discrimination case, but the point here was the appointment of the special advocate. The idea, or I thought it was the idea, that it was some sort of sham to stack the deck. As compared to four justices wanting to hear the case and needing someone to arguing one side, so asking the justice in charge of the circuit if he had someone in mind or something. I doubt this never happened in other cases.

Posted by: Joe | Jul 23, 2010 9:29:26 PM

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