It is one thing for a new administration to switch sides in a legal dispute. It is another to ask the Supreme Court to deny review in a case that would test whether the government’s new position is correct, the New York Times reports. In a brief last month, the Justice Department tried to have it both ways. It told the justices it no longer believed that some federal prisoners serving longer prison terms than the law allowed were entitled to challenge their sentences in court. For the last 16 years, the Justice Department had taken the opposite view in at least 11 Supreme Court briefs.
You might think the Supreme Court should settle things, but DOJ urged the justices to turn down an appeal from Dan McCarthan, a Florida man who said he was sentenced to seven more years than the law allowed. It did so even as it acknowledged that the legal question was significant and that the department’s new position could lead to harsh results, condemning inmates to serve out unlawful sentences. The request that the Supreme Court deny review of McCarthan’s case was “incredibly unseemly” and “not a good look for the Department of Justice,” said Leah Litman, law professor at the University of California Irvine. A McCarthan attorney, Kannon Shanmugam, said in a brief that, “When the government changes position on a concededly important question that has divided the circuits, it should at least have the courage of its convictions and be willing to defend its new position on the merits in this court.”