Supreme Court Unanimously Rebukes Biden DoJ Pander to BLM
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.
This is double-edged sarcasm, by the way. This really is a disgusting abdication of the rule of law.
Patterico (e349ce) — 6/15/2021 @ 8:33 amDevil’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) — 6/15/2021 @ 9:00 amPatterico, 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) — 6/15/2021 @ 9:04 amJVW
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) — 6/15/2021 @ 9:19 amJVW @ 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) — 6/15/2021 @ 9:25 amOpinion. (Like we needed one more Terry for people to misquote.)
nk (1d9030) — 6/15/2021 @ 9:28 amI should have read Ed Whelan’s full post. This part is striking:
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) — 6/15/2021 @ 9:31 amOur 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) — 6/15/2021 @ 9:56 am“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) — 6/15/2021 @ 10:25 am#8
steveg (ebe7c1) — 6/15/2021 @ 11:02 amhttps://twitter.com/HouseGOP/status/1404778472015286286
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) — 6/15/2021 @ 11:37 amthe 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) — 6/15/2021 @ 11:38 amMy 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) — 6/15/2021 @ 11:47 amI 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) — 6/15/2021 @ 12:06 pmRemember, 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) — 6/15/2021 @ 12:22 pmHe 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) — 6/15/2021 @ 12:51 pmApropos the behavior of DOJ in this case, two can play at the game:
>>>>>>>>>>>>
Rip Murdock (d2a2a8) — 6/15/2021 @ 1:21 pmThe 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.”
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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…..
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Justice Sotomayor dissented from Part I of the majority opinion. And she slammed Justice Thomas’s history……
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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.
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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) — 6/15/2021 @ 1:51 pm………
@16. Meh. Pigs do fly; today, to Geneva, Switzerland.
https://www.youtube.com/watch?v=GbMafIEZ6eM
DCSCA (f4c5e5) — 6/15/2021 @ 1:51 pmAOC 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) — 6/15/2021 @ 2:37 pmNo 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) — 6/15/2021 @ 4:28 pm21. urbanleftbehind (ef7dc9) — 6/15/2021 @ 2:37 pm
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.
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
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) — 6/15/2021 @ 4:46 pmTerry 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) — 6/15/2021 @ 5:27 pm#24
I think the paternalists were trying to address a drug that was a scourge on the black community.
steveg (ebe7c1) — 6/15/2021 @ 7:02 pmCheap, 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
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) — 6/16/2021 @ 1:21 pm@24: It’s all crack now.
Kevin M (ab1c11) — 6/16/2021 @ 1:22 pm