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The Supreme Court on Friday afternoon appointed a former clerk to Justice Samuel Alito (who also served as a clerk to then-Judge Neil Gorsuch on the U.S. Court of Appeals for the 10th Circuit) to defend a ruling by the U.S. Court of Appeals for the 5th Circuit in a pair of cases involving the interpretation of the First Step Act, a 2018 law that — among other things – reduced the mandatory minimum sentences for some drug and gun crimes. The cases have not yet been scheduled for oral argument.
In a brief unsigned order, the justices appointed Michael McGinley, a partner in the Dechert law firm, to brief and argue Hewitt v. United States and Duffey v. United States, in which the court granted review on July 2. Although it agreed with the defendants that the lower court’s interpretation of the First Step Act was “incorrect,” the federal government had nonetheless urged the Supreme Court to deny both cases. It emphasized that the question presented by the two cases was of only “modest importance,” and it noted that Congress was currently considering legislation that would eliminate the need for the court to step in.
But once the justices granted review, and with the federal government declining to defend the 5th Circuit’s decisions, the court appointed McGinley to do so. As law professor Katherine Shaw has documented, the practice of appointing a lawyer as a “friend of the court” to brief and argue in support of the judgment below happens roughly once every term. The lawyer selected frequently (although not always) is a former clerk for the justice responsible for the judicial circuit from which the case hails.
Before joining Dechert, McGinley served as associate counsel to the president during the Trump administration. It will be his first Supreme Court argument.
This article was originally published at Howe on the Court.
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