Acting Solicitor General Elizabeth Prelogar informed the court this week that her office was abandoning the Trump administration's position in the case Terry v. U.S. and no longer defending an Eleventh Circuit ruling that people serving time in prison for low-level crack offenses are ineligible for reduced sentences under the First Step Act of 2018. The Supreme Court has now tapped Mortara, a former clerk to Justice Clarence Thomas, to defend that ruling in the government's stead.
"It's obviously a tremendous honor," Mortara told Law360 on Friday. "When the court calls, you of course will say yes unless you have a conflict. I'm really excited to again be able to appear in front of the court as appointed amicus and have the ability to write a brief defending a position and help the court in any way that I can."
This is the third time the high court has appointed Mortara amicus curiae, or friend of the court. He has also been appointed five times at the federal circuit level. Mortara will receive help in the case from his longtime co-counsel Jonathan F. Mitchell, Texas' former solicitor general.
The court removed the case Terry v. U.S. from the April argument session and said it would reschedule it this term, meaning the court will probably convene a special session in May to hear the case.
Mortara will now defend the Eleventh Circuit's ruling that the First Step Act of 2018 only allows those serving prison time over larger quantities of crack to seek lower sentences based on lower ranges. That ruling was appealed by Tarahrick Terry, who is serving the final months of a 15-year sentence for possession with intent to distribute 3.9 grams of crack. Terry could be eligible for immediate release under new sentencing rules.
Prelogar informed the court on Monday that after a review of the Trump administration's position, her office "has concluded that petitioner's conviction is a 'covered offense' under [the First Step Act], that petitioner is entitled to request a reduced sentence and that the court of appeals erred in concluding otherwise."
Mortara worked for Bartlit Beck LLP before leaving to start his own practice. During the bench trial in a packed Boston courtroom, Mortara took the lead in arguing that Harvard unfairly penalized Asian American applicants due to their race, applying subjective, stereotypical labels that hurt their admissions chances in the name of racial balancing.
He is currently asking the Supreme Court to take up the case and overturn its 2003 landmark affirmative action ruling in Grutter v. Bollinger
.Terry is represented by Michael Caruso, Andrew L. Adler and Brenda G. Bryn of the Federal Public Defender's Office and Amir H. Ali and Devi M. Rao of the Roderick & Solange MacArthur Justice Center.
The government is represented by Elizabeth Prelogar of the U.S. Department of Justice.
The case is Terry v. U.S., case number 20-5904, in the U.S. Supreme Court.
--Editing by Michael Watanabe.
—Additional reporting by Chris Villani.
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