Chief Justice Roberts and Justice Barrett Ask Deputy SG Feigin About Switch in Position for Terry v. U.S.

Roberts: "I wondered what standard your office applies in deciding when to take that step. Is it just that you think the position is wrong and you would have reached a different one?"

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In April, I wrote about the Biden Administration's decision to switch positions in Terry v. United States. I speculated that the Justices might ask about about this presidential reversal. Chief Justice Roberts did not disappoint.

Deputy Solicitor General Feigin argued on behalf of the United States. His very first question of the box came from the Chief:

CHIEF JUSTICE ROBERTS: Thank you, Deputy General. In this case, the Department switched its position from being the Respondent to supporting the Petitioner. Prior administrations have done that. Subsequent administrations are going to do that. But I wondered what standard your office applies in deciding when to take that -that step. Is it just that you think the position is wrong and you would have reached a different one?

Feigin gave an answer that was, I'm sure, well-rehearsed:

MR. FEIGIN: Well, Your Honor, I don't know that we have a specific set of procedures or guidelines that --that I could kind of publicly share.

So there is a procedure, but it's private. Fascinating answer. Then Feigin explained that the position taken now is more "sound" that the Trump Administration's position:

Let me just say that in this case, very much due consideration was given to this within the Department, and the Department determined that the prior position wasn't as sound as the position that we're advocating now, and I think we focused on --on three factors.

Justice Barrett also chided the government for switching positions so late in the game:

JUSTICE BARRETT: Okay. And then my other question is, did you view the government's prior position --you know, when you changed -you changed pretty late. It was the day your brief was due. Would you characterize it as implausible, or is it your position that the statute is ambiguous and that in light of the purposes of the First Step Act and the Fair Sentencing Act that yours is the better interpretation?

Feigin would not say the prior position was "implausible." He stuck with "unsound."

MR. FEIGIN: The latter, Your Honor. I don't think we were taking an implausible position before, although we think it's ultimately unsound for the reasons in our brief and primarily the reasons I was just explaining to the --I was trying to explain to the Chief Justice.

I was recently advising our High School oral advocates on how to gently, but effectively criticize opposing counsel. I said don't use words like "wrong" or "false." That sort of language will turn off judges. I do like "unsound."

Adam Mortara, arguing as amicus, got in a very good dig at the government's flipped positions. Enjoy this colloquy with Justice Breyer, which segued right into Justice Alito's time.

JUSTICE BREYER: If I'm correct, why did the government argue what it argued? They knows these as well as I do, probably better.

MR. MORTARA: Your Honor, I am here to explain many things. The behavior of the United States Government in this case is not one of them.

CHIEF JUSTICE ROBERTS: Justice Alito.

I suspect there would have been (laughter) in the Court for that line.

Oh, and by the way, we still do not have a Solicitor General nominee. Oral arguments are over for the Term, and a nominee is not even announced. I really do not understand this delay. Something very strange must be going on behind the scenes.

NEXT: Univ. of San Diego Provost Rejects Complaints Against Prof. Tom Smith Over His Criticism of China

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  1. “Roberts: “I wondered what standard your office applies in deciding when to take that step. Is it just that you think the position is wrong and you would have reached a different one?” ”

    Liberal-libertarian mainstream: ‘We wonder why you ask this question now but ignored it four years ago . . . and whether we should consider that point in determining whether to enlarge the Supreme Court during the next year or two. Also . . . how do you like the number thirteen, Mr. Chief Justice?’

    1. There will still be 9 in two years, except the House and Senate majorities change and Breyer decides to retire in 2023.

      1. “I was recently advising our High School oral advocates on how to gently, but effectively criticize opposing counsel. I said don’t use words like “wrong” or “false.” That sort of language will turn off judges. I do like “unsound.”

        Heck, no. The judges should be made to regret their occupation or even being alive. They are the mortal enemy of our nation. They give no quarter, and none should be shown them. The other lawyer should be driven from the state.

        The skunk on the bench allowed a BLM thug to terrorize the other jurors into a Guilty verdict. The judge must be fired. The BLM thug should be arrested for jury tampering. And that MN AG, should driven from the state. A patriotic foundation should begin taking direct action against our internal enemies.

    2. “… how do you like the number thirteen, Mr. Chief Justice?”

      And how do you like the number 19?

      1. 54-40 or fight!

  2. Honestly, I really don’t understand why this is a question. The SG (like all other executive agencies) should work at the behest and under the direction of the President. That a new office-holder answers questions differently than the predecessor is of no moment.

    Perhaps all that should really come of this is that the SG should not be viewed as some favored player.

    1. The Solicitor General wants to be respected. Otherwise the President could send a sticky note with a vote suggestion.

      I think it’s fine to flip-flop on questions like the scope of foreign sovereign immunity or customary international law where the government is in part arguing what the law ought to be. But a question of statutory interpretation should not be so flexible.

      1. A question affecting how long one’s fellow humans stay in prison should be determined according to the law, and if the executive was until recently wrong in supporting illegally-excessive sentences, the sooner it can correct its error the better. If the SG doesn’t like it (s)he can resign, but as I understand it there is no SG.

        1. Plus, isn’t foreign sovereign immunity dealt with…in a statute?

          https://en.wikipedia.org/wiki/Foreign_Sovereign_Immunities_Act

  3. “I really do not understand this delay. Something very strange must be going on behind the scenes.

    I think that the whole calliope is crashing to the ground — “Orangeman Bad” is one thing, but once he is gone and you have to unify divergent interests whose sole issue of agreement is how much they hated him — good luck…

    1. I’m not the Democratic Party’s biggest fan, but they’ve been in charge of government many many times before they had Trump to hate.

    2. You know one thing that Orangeman was really bad at? Filling positions in his administration. Biden is well ahead of Trump’s pace in this respect (although it looks like behind either Obama or Bush; I can’t tell if this is attributable to delays in nomination versus in the Senate, though).

    3. “I think that the whole calliope is crashing to the ground ”

      then again, your grasp of reality is notoriously poor.

  4. If Biden thinks his administration’s new, more lenient interpretation is the correct one, he doesn’t need to wait for the courts – or if the courts go against him he can ignore them. All he needs is to use his clemency power to reduce these sentences to what he believes the law allows.

    1. Indeed.

    2. Wanting other people to do their jobs right so you don’t have to personally fix all the mistakes is such a Communist position to take, the Repups have no choice but to fight it.

  5. “Something very strange must be going on behind the scenes.”

    It can’t be easy finding a candidate who is seingly qualified, ticks all the right diversity and progressive boxes and could still be malleable enough to take this position.

    1. Presumably, a highly-skilled litigator capable of taking cases to the Supremes is taking a heck of a pay cut to work for the US.

  6. This is an odd case…

    How’s this for an idea instead.

    A. Put a quick fix to the bill through Congress. The Trump law passed easily with bipartisan consensus. Quick law, one sentence “Amending the bill, section C is qualified to have been modified as well”. Done. Pass it via voice vote.

    B. Have Biden pardon the guy.

    1. It’s a weakness of our legal procedures that, having decided that the guy should already been done with his sentence, that Biden can’t just cancel him before your A is done. I suppose as Cal Cetín suggests he could pardon everyone similarly situated, but it’s a bit silly that you still need a specific live controversy to resolve a circuit split that can still apply to hundreds or thousands of other similar cases and that the near certain outcome of a pardon right now would be for the Court to just punt the case.

      1. The Biden administration has not “decided that the guy should already been done with his sentence”– or if it has, it hasn’t told the Supreme Court that. The issue is whether the defendant can even ask a court to reduce his sentence, not whether (and to what extent) the reduction should be granted.

  7. This is a cheap shot by the SC.

    They’re shooting the messenger.

    1. The Supreme Court now has a conservative majority built on 50-, 52-, and 54-vote Senate margins. Most Americans — especially educated, modern, successful, decent Americans — understand that such a Court possesses relatively little popular or moral standing.

      That problem is nothing Court enlargement couldn’t solve.

      1. But you think a 13 member court based on a bare 50 senators plus Vice President majority will somehow have more popular or moral standing?

        1. Slightly more moral standing, based on the current American population (and electorate).

          More popular standing (same standard).

          No worse than the current circumstance in any respect (other than that involving inertia).

  8. JUSTICE BREYER: “. . . They knows these as well as I do, probably better.”

    Really? Is Justice Breyer from New Jersey?

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