Last June, U.S. Supreme Court Justice Antonin Scalia called Baker Botts associate Evan Youngto see if the Austin lawyer would argue for the U.S. Department of Justice in an appeal. In that case, the government had decided to oppose a 5th U.S. Circuit Court of Appeals opinion in its favor, but Scalia wanted Young to argue in favor of affirming the 5th Circuit opinion.
On March 28, Young, who had clerked for Scalia, got another call from the high court and learned the court ruled in his favor. “It was affirmed, and of course that was the word I wanted to hear,” Young says of his conversation with a Supreme Court clerk. Even more significant to Young, Scalia authored the court’s majority opinion in Setser v. United States.
“Scalia has already done so many opinions in 2011. The likelihood of him having the opinion in this case was small,” Young says of his former boss. In Setser, the high court had to decide if a district court has authority to order a federal sentence to run consecutively with an anticipated, but not-yet-imposed, state sentence. The 5th Circuit ruled in May 2010 that the district court could do so. “The [Supreme] Court decided that the judge — and not the Bureau of Prisons, not the jailer — will have the authority to decide in cases like Setser,” Young says.
Young says the opinion is important for lawyers and their clients, because it helps ensure that judges make sentencing decisions. Scalia delivered the opinion, joined by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Sonia Sotomayor and Elena Kagan. Justice Stephen Breyer wrote a dissenting opinion, joined by Justices Anthony Kennedy and Ruth Bader Ginsburg.
Setser’s lawyer, Jason Hawkins, who works at the Federal Public Defender’s Office for the Northern District of Texas, did not immediately return a telephone message seeking comment. Neither did William Jay, an assistant solicitor general in Washington, D.C., who argued for the Department of Justice. In “just another Scalia factoid,” Young says, Jay also clerked for Scalia, and their tenures as clerks overlapped by a couple weeks.
-- Brenda Sapino Jeffreys