The U.S. Supreme Court has appointed John Bash, a former assistant to the U.S. solicitor general and a seasoned litigator, to defend a lower court ruling in an upcoming case involving Holsey Ellingburg, a Georgia man challenging the collection of restitution for a crime committed in 1996. This decision arises from the federal government’s choice not to uphold the Eighth Circuit Court’s reasoning in Ellingburg v. United States.
The case questions the application of the Mandatory Victims Restitution Act (MVRA), with Ellingburg contesting the federal efforts to secure restitution under the statute, enacted after his crime. At its core, the dispute revolves around whether restitution under the MVRA functions as a civil remedy or constitutes a punishment that contravenes the Constitution’s ex post facto clause, which proscribes laws that retroactively increase penalties for criminal acts.
Bash’s role is pivotal since the federal government has chosen not to defend the rationale of the Eighth Circuit’s decision. His appointment adds to the roster of external lawyers participating in Supreme Court cases, a practice that, while not unprecedented, will see notable frequency in the 2025-26 term as the Court already anticipates arguing nine cases. Bash will bring his substantial experience to bear, having previously argued ten cases before the Supreme Court.
The question at hand focuses on the legal interpretation of the MVRA. In February, the federal government underscored the lack of consensus among federal appellate courts regarding whether restitution under the MVRA represents criminal punishment subject to the ex post facto clause. Despite these divisions, the government suggested the Eighth Circuit’s decision would likely represent the majority view.
For legal practitioners and observers, Bash’s appointment signals the Court’s intent to explore this legal territory deeply, especially given the circuit split on this issue. For more details on the case, refer to the SCOTUSblog article.