Fascinating sentencing dogs that did not end up barking in Barber

The fact that many folks went to law school in order to avoid math may itself ensure that the Supreme Court's decision today in Barber v. Thomas concerning the calculation of prisoner good-time credits (basics here) does not get all the attention it merits.  More fundamentally, because the Barber ruling affirms the good-time calculation status quo, this Term's biggest sentencing sleeper case will probably go down in history as just another jurisprudential dog that could have, but in the end did not, bark in the face of modern mass incarceration. 

But before sentencing fans move on, I recommend everyone — not just sentencign fans, but everyone — find the time to read and reflect on the opinions and the votes in Barber.  Put simply, there is a lot of "there there" in both opinionsi n Barber, and in this post I can only just start scratching the surface of what should be noticed in the Court's work with this initial post. 

Starting with the opinion of the Court authored by Justice Breyer, it is intriguing and notable how both the legislative purpose and legislative history of the Sentencing Reform Act is deftly operationalized to support the Court's anti-defendant interpretation of the good-time credit statute.  Though I am not a statutory interpretation guru, I sense Justice Breyer worked extra hard to craft language that enabled Justice Scalia and others to be comfortable signing on to his opinion's non-textual elements.  And, for truly hard-core statutory interpretation junkies, there are also some really interesting rule of lenity and Chevon deference moves in the Barber majority worth noticing as well.

Turning to the voting patterns, I suspect that long-time blog readers will not be too surprised to see a pro-government ruling coming from the pen of Justice Breyer.  What is a bit more surprising, and certainly noteworthy, is that this ruling in Barber lost the vote of Justice Kennedy even though it retained the vote of Justice Sotomayor.  I cannot recall another split opinion this term in which Justice Sotomayor went against the defendant while Justice Kennedy when against the government. 

I stress the voting patter in Barber in part because I still recall all the debate over "empathy" in last year's confirmation battles concern then-Judge Sotomayor.  As highlighted by this first paragraph from the dissent in Barber, it would seem that it is Justice Kennedy who really knows how to turn on judicial emphaty:

The Court has interpreted a federal sentencing statutein a manner that disadvantages almost 200,000 federal prisoners.  See Pet. for Cert. 11, and n. 2.  It adopts thisreading despite the existence of an alternative interpreta-tion that is more consistent with the statute’s text. Absent a clear congressional directive, the statute ought not to beread as the Court reads it. For the Court’s interpretation — an interpretation that in my submission is quite incorrect — imposes tens of thousands of years of additional prison time on federal prisoners according to a mathematical formula they will be unable to understand.  And if the only way to call attention to the human implications of this case is to speak in terms of economics, then it should be noted that the Court’s interpretation comes at a cost to the taxpayers of untold millions of dollars. See id., at 11.  The interpretation the Court adopts, moreover, will bedevastating to the prisoners who have behaved the bestand will undermine the purpose of the statute.  These considerations, and those stated below, require this respectful dissent.

Whatever else one makes of the legal debate in Barber, I am eager to give Justice Kennedy props for writing an opening paragraph that manages to pull on both heart-strings and purse-stings at the same time.