Deepening circuit splits, divided Sixth Circuit panel decides to “look beyond” statutory text to rewrite compassionate release limits

I noted in this post back in October that a Sixth Circuit panel heard oral argument to consider its precedent limiting grounds for compassionate release in light of the US Sentencing Commission guideline amendment allowing some “changes in the law” to serve as basis for sentence reduction under § 3582(c)(1)(A)(i).  In that post, I explained why I thought this issue of statutory interpretation should be fairly straight forward for any and all true textualists.  And early this week, we got a lengthy split panel ruling in the case from the Sixth Circuit via US v. Bricker, No. 24-3286 (6th Cir. April 22, 2025) (available here).  That ruling provides for me another reminder that courts can and often will ignore textualism principles when it leads to a policy outcome that they dislike.

I won’t restate the textualist points made in this prior post, but consider this sentence from Bricker in which the Sixth Circuit panel majority tips its hand: “[Our prior precedent] McCall did look beyond the words ‘extraordinary and compelling’ to reach its conclusion, but that was in keeping with basic principles of statutory interpretation to not look at text in isolation to discern its unambiguous meaning.”  When courts contend that they need to “look beyond” the “text in isolation” in service to “basic principles,” they are revealing that the actual text does not support their desired policy outcome and thus they need to “look beyond” what Congress actually enacted in order to “reach [a desired, non-textual] conclusion.”   (To its credit, the Sixth Circuit panel does not assert that its ruling furthers the “will of Congress” like the Third Circuit did in Rutherford last year, but that may because this panel ruling seems to extend much further and so cannot even be justified on those terms.) 

There are lots of other textualist problems with the Bricker opinion (eg, it wrongly frames the the Commission’s policy statement as “effectively giving retroactive effect to the nonretroactive change to sentencing law”), but the majority opinion overall serves as a telling example of how courts can get to non-textualist outcomes they prefer.  In so doing, the Bricker ruling also raises a bunch of new questions (eg, Bricker seems to be eager to suggest that there are no compassionate release grounds that can be used to reduce “statutory mandatory minimum sentences”), highlighting that that all sort of new policy outcomes can be pursued by non-textualist courts who are ready, eager and willing to “look beyond” the actual text enacted by Congress.

Judge Stranch has a lengthy dissent in Bricker, which gets started this way:

 The majority opinion misapprehends recent Supreme Court precedent on administrative law, misconstrues this court’s opinion in United States v. McCall, 56 F.4th 1048 (6th Cir. 2022) (en banc), and ignores the plain language of several statutes to read constraints into a statutory scheme where none exist. Because these cases and statutes instead support holding that USSG § 1B1.13(b)(6) is a valid and binding exercise of the Commission’s delegated authority, I respectfully dissent.  

As suggested above, I read the panel majority in Bricker to be inventing much broader non-textual limits on compassionate release than did the Third Circuit in US v. Rutherford, No. 23-1904 (3d Cir. Nov. 1, 2024) (available here).  That ruling is the subject of a pending cert petition, and Bricker surely increases the odds that cert on this issue will be everntually granted.  But the earliest we are likely to see a grant may be months from now, meaning the earliest we might hope/expect a SCOTUS resolution would likely be Spring 2026.  And I am quite unsure whether congressional text or judicial policy preferences would ultimately prevail on this matter at SCOTUS.