Patterico's Pontifications

6/15/2021

Supreme Court Unanimously Rebukes Biden DoJ Pander to BLM

Filed under: General — Patterico @ 8:29 am



Ed Whelan has the scoop here. The Supreme Court unanimously held “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.” Whelan says the unanimous opinion was a blow to the credibility of the Biden administration.

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.

Prosecutors in DoJ played defense attorney for political reasons, to pander to black voters. But the law was decidedly not on their side, as a unanimous court held.

This is a disgusting abdication of the rule of law. When an administration subverts justice, it is supposed to be on behalf of the president’s personal friends, not Black Lives Matter.

27 Responses to “Supreme Court Unanimously Rebukes Biden DoJ Pander to BLM”

  1. This is double-edged sarcasm, by the way. This really is a disgusting abdication of the rule of law.

    Patterico (e349ce)

  2. Devil’s Advocate: What if the Biden Administration knew they would lose badly (perhaps even unanimously) at the Court, so they just pandered to BLM and the forces of woke in order to win some brownie (whoops! maybe not the best adjective there!) points because they knew the poker hand they were holding was a 2, 3, 4, 5, 7 non-suited?

    I don’t believe this, of course, but I would love to find out that there is someone at 1600 Pennsylvania Avenue who knows how to paint BLM into a corner.

    JVW (ee64e4)

  3. Patterico, have you ever written about Mandatory minimums? My uninformed opinion is that mandatory minimums are a bad idea but I’d like to learn more.

    I searched to see if I could find anything from you about the subject and came up dry. So if my google-fu is weak I apologize.

    Time123 (653992)

  4. JVW

    They did not expect a unanimous court. They figured this was a worthwhile move where they could blame the loss on a 6-3 court.

    Appalled (1a17de)

  5. JVW @ 2. Inapplicable scenario. The defendant was appealing, not the government. This was a case that the government tried to throw, but the Court would not let them and gave them the win despite of themselves, by appointing an amicus curiae to argue the pro-government position.

    nk (1d9030)

  6. Opinion. (Like we needed one more Terry for people to misquote.)

    nk (1d9030)

  7. I should have read Ed Whelan’s full post. This part is striking:

    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.

    I thought the long-time Washington professionals in the Biden Administration were supposed to be the ones who would avoid antagonizing the other branches of government with petty political moves.

    JVW (ee64e4)

  8. Our comrade Kevin M. said a while back that the Biden administration is a Politburo and Biden is not even the central figure on it, and I suspect that he’s right.

    nk (1d9030)

  9. “Well, I tell you what, if you have a problem figuring out whether you’re for me or Trump, then you ain’t black.” – Squinty McStumblebum

    DCSCA (f4c5e5)

  10. This is double-edged sarcasm, by the way. This really is a disgusting abdication of the rule of law.

    I agree with this, of course. I just think it happens a lot. I expect all right-thinking people to now attack the Supreme Court.

    Kevin M (ab1c11)

  11. the poker hand they were holding was a 2, 3, 4, 5, 7 non-suited?

    Trump would have just claimed they were playing low-ball and reached for the pot.

    Kevin M (ab1c11)

  12. My uninformed opinion is that mandatory minimums are a bad idea

    Probably, but there was a reason they were enacted. Sometimes you get prosecutors or judges who are “soft on crime”, and enough of those and they get their discretion removed.

    Kevin M (ab1c11)

  13. This is a disgusting abdication of the rule of law. When an administration subverts justice, it is supposed to be on behalf of the president’s personal friends, not Black Lives Matter.

    I see what you did there, and I wholeheartedly approve. The only “praise” any politician should ever receive is “Thank you for doing your job, now get back to work!”

    Lauds for politicians should be reserved for those times when their righteous actions could cost them politically, with regard to their peers. I’m looking at you, Mitt.

    felipe (484255)

  14. Time123 (653992) — 6/15/2021 @ 9:04 am

    I’m with Time123. This would make for a good post.

    felipe (484255)

  15. #8
    https://twitter.com/HouseGOP/status/1404778472015286286

    steveg (ebe7c1) — 6/15/2021 @ 11:02 am

    Remember, it’s just a stutter. He’s mentally fit as a fiddle. Probably could beat a Navy SEAL in a push-up contest as well.

    Hoi Polloi (ade50d)

  16. He who pays the piper calls the tune. Black voters got biden the nomination and the presidency not law and order conservatives. If you think this is bad wait till AOC becomes president!

    asset (f5b8d2)

  17. Apropos the behavior of DOJ in this case, two can play at the game:

    SCOTUS Punts the Harvard Affirmative Action Case To The Acting SG

    On Monday, the Court requested the views of the Acting Solicitor General in Students for Fair Admissions v. Harvard. This case challenges the University’s affirmative action policy. Had the Court granted the case this month, it likely would have been argued in November or December 2021. But now, it is impossible for the case to be heard during the October 2021 term.

    Now, the ball is in the SG’s Court. She can sit on this request for an indeterminate about of time. There is no time frame in which she is required to reply. If the SG files a brief by the end of December, the Court could grant the case in January, and hear arguments in April. But if the SG files the brief in late January, a cert grant would not be timely enough for an April argument under the normal course. Instead, the case would be argued during the October 2022 term, with a decision by June 2023. In theory at least, the SG can control the fate of the decision. Who knows what the world will look like at that point.

    Now the Roberts Court doesn’t care what the Biden Administration thinks about affirmative action. We know the answer. This CVSG is a dilatory tactic from the Roberts Court. ……. OT 2021 is already full with abortion and the Second Amendment. It would be too hectic to add affirmative action on top of that mess.
    ……..
    By the way, we still do not have a Solicitor General nominee.

    >>>>>>>>>>>>

    Rip Murdock (d2a2a8)

  18. The decision may have been unanimous, but it was messy:

    In Terry, Justice Thomas pats down the Biden Administration. But Justice Sotomayor Frisks Justice Thomas

    At quick glance, Terry v. United States looks like a smooth, unanimous decision. The Court held that under the First Step Act, a crack offender is not eligible for a sentencing reduction if he was convicted of a crack offense that did not trigger a mandatory minimum sentence. Beneath the surface, however, the waters were very choppy.

    First, Justice Thomas’s majority opinion faulted the Biden Administration for switching positions. Indeed, the criticism was even more pointed because of the late-arriving brief.
    ……..
    Second, Justice Thomas uses harsh language to describe the SG’s argument. He deems the SG’s position as a “sleight of hand.”
    ……..
    Third, however, there was some hostility between Justice Thomas’s majority opinion, and Justice Sotomayor’s concurrence. Justice Thomas provided a history of the 1986 omnibus crime bill that created 100:1 ratio. He explained that this bill was overwhelmingly supported by black people…..
    ……..
    Justice Sotomayor dissented from Part I of the majority opinion. And she slammed Justice Thomas’s history……
    ……..
    Justice Sotomayor accuses Justice Thomas of whitewashing history. I’d love to be a fly on the wall during the SCOTUS reading group meeting about the 1619 Project.
    ……..
    Fourth, both the majority and concurrence took an unfortunate frolic and detour into partisan politics.

    The majority stresses that the 1986 omnibus crime bill was passed “with near unanimity.” He doesn’t name politics, but highlights that Republicans and Democrats voted for the bill…..
    ……
    Thomas includes this history to show that the 1986 bill was not controversial, and indeed was widely supported. None of that history is relevant to interpreting the 2018 First Step Act. He is using these votes to make a political point: the legislation, at least at the time, was popular and salutary. Also, one of those 97 senators was Joseph Robinette Biden. Indeed, Biden helped draft that crack legislation. Another friendly pat-down. Revenge is a dish best served cold after three decades.

    Justice Sotomayor offers an implied rebuke of then-Senator Biden. It turns out that the 100:1 ratio was apparently made up without any rationale. ……

    Fifth, Justice Sotomayor once again urges Congress to take action…..

    Even if Congress does not act, President Biden could use clemency for these cases. That action would have been far more defensible than flipping positions before the Supreme Court.
    ………

    Rip Murdock (d2a2a8)

  19. @16. Meh. Pigs do fly; today, to Geneva, Switzerland.

    https://www.youtube.com/watch?v=GbMafIEZ6eM

    DCSCA (f4c5e5)

  20. AOC has no clue with her people are hungry rationalizatio for street crime. It will be blacks themselves that will wake up on crime, considering they have to live in those hoods. Dems best hope Eric Adams and long shot Val Demings get into their target offices before the Detroit Police Chief and Mark Robinson.

    urbanleftbehind (ef7dc9)

  21. No different than when Obama/Biden’s corrupt AG dropped an already won case against the vote intimidating New Black Panther Party.

    As expected when supporting leftists.

    NJRob (746ef9)

  22. 21. urbanleftbehind (ef7dc9) — 6/15/2021 @ 2:37 pm

    It will be blacks themselves that will wake up on crime, considering they have to live in those hoods.

    They don;t need to wake up to the need for police.

    https://www.newsweek.com/81-black-americans-dont-want-less-police-presence-despite-protestssome-want-more-cops-poll-1523093

    They need to wake up to many of their politicians. And well off non-blacks need to understand what is bad.

    Dems best hope Eric Adams and long shot Val Demings get into their target offices before the Detroit Police Chief and Mark Robinson

    The “progressives” have really locked into place their pro crime policies. It can’t be reversed by a mayor.

    https://nypost.com/2020/07/06/what-its-going-to-take-to-reverse-new-york-citys-crime-spike

    This can’t be repeated too often: Stop-and-frisk, broken-windows and anti-crime policing had a salutary effect in their own right. But as components of a textured strategy, those policies also did what toothless whining about “illegal guns” will never do: They made bringing those weapons onto the streets too risky a proposition for turnstile jumpers and petty pot dealers. Who wanted to get caught with one, when that meant mandatory hard time?

    All that is history now. The de Blasio administration dismantled a winning strategy, one element at a time, and the results are clear: New York is not Chicago — 77 shot, 14 dead over the holiday — but it’s careering in that direction.

    New York, city and state, has been hard at work disassociating crime and punishment for some time now — and bragging on it.

    That’s what bail “reform” and “raise the age” of criminal culpability was all about. Remember when Gov. Cuomo and the Legislature’s leaders proclaimed the wisdom of those policies? Not so much now, since the shooting started.

    The disassociation is also the prime motivator behind the #DefundthePolice demands so warmly embraced by city Comptroller Scott Stringer, City Council Speaker Corey Johnson and a solid majority of the council itself.

    All this has sent a pernicious, two-pronged message to both cops and criminals: to the cops, stay in your patrol cars, it isn’t worth the risk to get out; to the criminals, do your damnedest, no one’s paying attention.

    There were some other factors.

    Some anti-crime things we could do without, and of course, not only increased gradually. Crime is a equilibrium situation – criminals make crimials (friends) and consequences deters and reduces it.

    Sammy Finkelman (51cd0c)

  23. Terry had already gone up the ladder. All this does is switch the action to the kickoff, when the prisoner first petitions for First Step relief, and the DOJ throws the case in the District Court. No contest, no appeal.

    And this was not about mandatory minimums per se, I don’t think. It was about black people’s cocaine (crack) being punished 100 times more severely (if you say 18 times I won’t bother to argue) than white people’s cocaine (nose powder).

    nk (1d9030)

  24. #24

    I think the paternalists were trying to address a drug that was a scourge on the black community.
    Cheap, easy to make, and devastating to the users. (See Hunter Biden and the smoking of Parmesean cheese). The road to hell being paved by (dubious) good? intentions.
    By the time the pooch birthed the cross species offspring the damage was done

    steveg (ebe7c1)

  25. Even if Congress does not act, President Biden could use clemency for these cases.

    One of the reasons for clemency is that some things are difficult for legislatures, since law is hard to aim.

    Kevin M (ab1c11)

  26. @24: It’s all crack now.

    Kevin M (ab1c11)


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