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March 20, 2021

SCOTUS appoints counsel (and delays argument) after new government position on crack sentencing retroactivity issue in Terry

As noted in this prior post, earlier this week the Acting Solicitor General informed the US Supreme Court that the government had a new (pro-defendant) position in Terry v. United States, No. 20-5904, the SCOTUS case concerning which crack offenders have a so-called "covered offense" under Section 404 of the FIRST STEP Act to allow for their retroactive resentencing.  The Supreme Court yesterday responding via this order in the Terry case:

The case is removed from the calendar for the April 2021 argument session.  Adam K. Mortara, Esquire, of Chicago, Illinois, is invited to brief and argue this case, as amicus curiae, in support of the judgment below.  The case will be rescheduled for argument this Term.

In other words, the Court appointed a lawyer to make the case against broad retroactive resentencing for certain crack offenders after the government said it no longer supported that position.  Doing so is not unusual when the parties agree on an outcome different from the decision below.  What is relatively unusual is that this appointment needed to be made long after cert was granted and briefing complete because of the Acting SG's new position on the merits.

I am pretty sure, under normal circumstances, the April argument session is the last one of a usual SCOTUS Term. But in our current a world of online arguments and disrupted timelines, perhaps the Justices can and will schedule this one argument for some time in May.  The Acting SG noted that the defendant in this case is due to finish the imprisonment portion of his sentence this September, and it would seem the Court is remains eager to resolve this matter before it takes its summer break.

Prior related posts on Terry:

March 20, 2021 at 11:20 AM | Permalink


Mortara clerked for Thomas and of course is best known these days as co-counsel for SFFA in the case alleging “discrimination” by Harvard in its undergrad admissions, which case is currently on a petition for cert.

I agree the Justices who voted to hear this case were eager to do so. Cert wasn’t granted until after the election when they already had at least some idea the gov’t would likely change positions. And even though it seems like possible mootness wasn’t raised

Posted by: hardreaders | Mar 20, 2021 5:18:45 PM

[submitted too early, so finishing my thought] until the Acting SG’s brief, I can imagine the Justices were aware of that beforehand.

Posted by: hardreaders | Mar 20, 2021 5:20:56 PM

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