Justice Sotomayor joined the Court's 6-3 majority today in Barber v. Thomas, upholding the Bureau of Prisons' method of computing good time credits. The Bureau uses the actual time the defendant has been in jail; the defendant had wanted the computation based on the inevitably longer period to which he was sentenced.
The case is not a blockbuster, although it is marginally significant for the roughly 200,000 federal inmates. The principal significance for the rest of us is that Justice Sotomayor voted for the government in a case where an "empathy"-driven judge (see, e.g., Justice Kennedy and his sentiment-laden writings in Graham, Roper and Kennedy v. Lousiana) could easily have gone the other way.
Unsurprisingly, Sotomayor voted as Justice Souter surely would have in Graham. But today's case is different. It is difficult to believe that Souter -- ever looking to eke out a way to boost criminal defendants -- would have voted with today's majority. This is the frist criminal case in which I am certain that Sotomayor cast a more "consevative" vote than Souter would have.
Ladies and gentemen, there may yet be hope.