The courts in favor of the broad application of the FSA also argued that the overall purpose of the act supported such a broad application . But others favoring a narrower application of the act were not persuaded , insisting that vacatur does not erase a prior sentence from history . Moreover , those arguing for a strict textual reading pointed out that disparities in sentencing will exist regardless of how the act is interpreted .
The Oral Argument As noted , the Hewitt and Duffey cases were argued before the Supreme Court on Jan . 13 .
Given the unusual way in which the cases reached the court , there were three parties to the argument instead of the usual two : ( 1 ) counsel for the petitioners ; ( 2 ) counsel for the U . S .; and ( 3 ) court-appointed amici counsel to support the judgment below , because the U . S . declined to do so .
This tripartite structure is the result of a last-minute shift in the position of the government , which — despite originally taking the position that application of the FSA was inappropriate — argued on appeal that the act should apply to the defendants ' resentencings .[ 11 ]
All nine of the justices questioned one counsel or another , which made for a lively back-and-forth flow to the argument .
Justice Amy Coney Barrett asked the fewest questions , relying on her 2020 dissenting opinion from the U . S . Court of Appeals for the Seventh Circuit ' s en banc consideration of these same issues in U . S . v . Uriarte to reflect her views .[ 12 ]
As the argument unfolded , the remaining eight justices agreed and disagreed with each other on various nonideological grounds . And Justice Samuel Alito brought down the house when he remarked about how much " fun [ it was ] to talk about grammar ."[ 13 ]
Based on the justices ' comments at argument , and in light of Justice Barrett ' s previously revealed views in Uriarte , the court ' s decision appears to hinge on two key inquiries , outlined below .
Whether the Statute Is Viewed as Ambiguous or Not
Justice Barrett tied her opinion in Uriarte to " the plain text of the statute ," and Justices Brett Kavanaugh , Clarence Thomas and Alito appeared to agree that the language is plain .
With one more justice , there would be a majority for this position . That vote is likely to come from Justice Gorsuch , who can read the language as unambiguous if the present perfect tense is understood as he learned in high school .[ 14 ]
If the statute is considered unambiguous and the most natural reading of its text plain , then the FSA will not apply to Hewitt or Duffey .
Whether This Plain Reading of the Statute Fails to Further an Evident Purpose of the FSA Two different potential purposes [ 15 ] were referenced at oral argument : fairness and finality . Justice Kavanaugh saw a concern that Congress was interested in remedying " really big [ sentencing ]