unfairness ,"[ 16 ] while Justice Alito understood it as having " nothing to do with fairness ," but rather " the burden on the courts ."[ 17 ]
That debate went back and forth among various justices and counsel until Justice Elena Kagan said it was her " intuition " that Congress " wrote [ this statutory ] provision without this [ situation ] in their heads at all ."[ 18 ]
Assistant to the Solicitor General Masha Hansford agreed with Justice Kagan ' s intuition , and Justice Gorsuch subsequently did so , as well .
Against this three-part backdrop , it seems unlikely that five justices could somehow reason their way together to endorse a single compelling purpose applicable to the situation before the court , which might somehow provide a context relevant to a contrary interpretation of the plain language of the FSA .
Other Possible Outcomes
Despite this predicted statutory interpretation resolution of the case , there is also the possibility that it could be decided by a practical resolution instead , especially when there are apparently only eight open cases presenting the same issue .[ 19 ]
If the court rules that the statute is unambiguous and does not apply to offenders such as Hewitt , the resolution will be straightforward : The FSA will not apply to such defendants , who will thus be resentenced according to the guidelines in effect at the time of their original sentencing .
Even if the court finds that there is ambiguity , however , it may still not be persuaded that the FSA was meant to apply to defendants with vacated sentences .
But if the court finds that application of the FSA to offenders in the shoes of Hewitt is the most appropriate reading of Section 403 , relief may be available to these additional eight defendants , along with any others who may still have their sentences vacated in the future .[ 20 ]
In addition , Chief Justice John Roberts , who played his cards close to the vest at argument , has been receptive to practical resolutions limiting the precedential effect of cases with their own restrictive fact patterns .
This case might present the perfect opportunity for the court to do so again by endorsing as narrow an opinion as possible , perhaps based on the statutory interpretation anomaly created if Justice Kagan ' s intuition is right .
However it turns out , look for the decision to be written either by Justice Barrett because of the work she ' s already done on the issue in Uriarte , or by Justice Ketanji Brown Jackson because of her deep well of sentencing expertise .
Stephen L . Braga is a partner and Sophia E . Evans is an associate at Bracewell LLP .
The opinions expressed are those of the author ( s ) and do not necessarily reflect the views of their employer , its clients , or Portfolio Media Inc ., or any of its or their respective affiliates . This article is for general information purposes and is not intended to be and should not be taken as legal advice .