For the second year in a row, the Supreme Court will take the rare step of hearing oral argument in May. But this time the cause is not the COVID-19 pandemic, as it was last year, but instead the Biden administration’s change in position in Terry v. United States. In a brief order on Thursday, the court rescheduled argument in that case for May 4.
At issue in the case is whether defendants who were sentenced for low-level crack-cocaine offenses before Congress passed the Fair Sentencing Act of 2010 are eligible for lower sentences under the First Step Act of 2018. In a “friend of the court” brief encouraging the justices to take up the issue, the National Association of Criminal Defense Lawyers told the justices that their review was essential “to ensure that Congress’s goal of alleviating the racial disparities in sentencing caused by the 1986 law’s harsh sentencing regime is realized.”
Tarahrick Terry, who was sentenced to more than 15 years in prison after pleading guilty in 2008 to an offense involving crack cocaine, filed his petition for review in late September. In a brief signed by former Acting Solicitor General Jeffrey Wall, the Trump administration in December urged the justices to deny review. Despite Wall’s plea, the justices announced in early January that they would take up the case.
Terry filed his brief on the merits on Feb. 12, and on March 12 the case was set for oral argument on April 20. But on March 15, the Biden administration’s acting solicitor general, Elizabeth Prelogar, sent a letter to notify the justices that the United States “will no longer defend” the lower court’s ruling. Instead, Prelogar wrote, Terry “is entitled to request a reduced sentence” under the First Step Act. As a result, Prelogar noted, the justices “may wish to appoint” a “friend of the court” to defend the contrary ruling of the U.S. Court of Appeals for the 11th Circuit.
Andrew Adler, Terry’s lawyer, fired off a letter to the court quickly after receiving Prelogar’s letter. Adler stressed that the United States had waited until “the day its merits brief was due and three months after the change in administrations” to change positions. Because of the importance of the issue to many inmates in custody, but particularly to Terry, who is scheduled to be released in September, Adler wrote, the justices should not put off deciding the case until next term. Instead, he suggested, the justices should appoint a “friend of the court” to defend the 11th Circuit’s decision and hold argument in May if necessary.
Last week the court removed Terry’s case from the April argument calendar and appointed Adam Mortara, a Chicago lawyer and former clerk to Justice Clarence Thomas, the circuit justice for the 11th Circuit, to brief and argue the case as a “friend of the court.”
In Thursday’s order rescheduling the argument for May 4, the justices – all of whom have been fully vaccinated against the coronavirus – did not say whether the argument would be held remotely, as all oral arguments since May 2020 have been, or in person.
This post is also published on SCOTUSblog.