When the U.S. Supreme Court is in session, each Wednesday and Friday afternoon is set aside for an esoteric conclave known as the Justices' Conference. During these private meetings, the justices discuss cases they have recently heard or might decide to hear. The first order of business usually involves the latter, requests from various litigants for the high court to review cases that have been adjudicated by lower courts. Typically, these cases have already been through the appellate process, but occasionally the justices receive a "petition for certiorari before judgment" asking them to consider the decision of some District Court before it has been reviewed by a Court of Appeals. Friday's conference schedule includes consideration of one such petition, filed pursuant to Commonwealth of Virginia v. Sebelius.
The Virginia case was, of course, the first legal challenge to the Patient Protection and Affordable Care Act (PPACA) in which the Department of Justice (DOJ) received a major defeat. Last December, U.S. District Court Judge Henry Hudson ruled that Congress had exceeded its constitutional limits by including a requirement that all Americans buy health insurance in the health care "reform" law. Shortly following this ruling, the Obama DOJ filed an appeal in the U.S. District Court of Appeals for the Fourth Circuit, but Virginia Attorney General Ken Cuccinelli announced that he would petition the Supreme Court for an expedited review of the case. Explaining his move to bypass the usual protracted appellate process, Cuccinelli averred that "a prompt resolution of this issue is in everyone's best interest."
Oddly, considering its oft-repeated assertion that Congress does indeed possess the authority to impose such a mandate, the Obama DOJ has taken the opposite view. It has, in fact, worked diligently to put off the inevitable day when it must make that case before the Supreme Court. In response to Cuccinelli's petition, the DOJ filed a brief in opposition claiming that Virginia had provided no good reason for "short-circuiting" the appellate process. The Court does, of course, have practical and philosophical reasons not to meddle with the normal appeals process, but its procedural rules allow it to do so if a case is of "imperative public importance." Ironically, the DOJ's brief actually concedes that the constitutionality of the individual mandate "is undoubtedly an issue of great public importance."
And it is hardly necessary to consult a constitutional scholar to see that it is in the public interest to resolve the uncertainty created by Obamacare in an industry comprising a sixth of the nation's economy. Not coincidentally, many of the cases in which the Court has "short-circuited" the appellate process have involved crucial sectors of the economy. This was certainly true, for example, when it intervened shortly after World War II in United States v. United Mine Workers. The Court reached over the appeals courts for that case and ruled against the union as well as its leaders. Arguably, leaving the constitutional challenges to Obamacare wandering around for another year in the labyrinthine appellate process would be far more disruptive than would have been the case absent that example of expedited high court review.
If the Court does grant Virginia's petition, it will of course be accused of doing so for political reasons. Among progressives, it is a given that the Court is "quite -- though not entirely -- politicized," as eminent legal scholar Ezra Klein phrases it. Fortunately for the country, the "politicization of the Supreme Court" is largely fiction. As Jennifer Rubin characterized Klein's comment, "From the perspective of people who understand how the Supreme Court works… [i]t doesn't represent how the justices think and how the institution operates." The justices are not wholly immune from politics, of course. But, unlike many progressive journalists, the people who sit on the Supreme Court are pretty honest -- even the liberals. Otherwise, they would never have produced a 7-2 ruling that Florida's 2000 recount scheme was unconstitutional.
That the justices are generally honest is, however, not necessarily good news for those of us who would like to see them take up the Obamacare case immediately. Most of the DOJ's arguments against Virginia's petition for certiorari are disingenuous, even to the untutored eye of the layman. But the government's lawyers do make one claim that might well gain traction with six of the nine justices -- that the state doesn't have standing to bring the lawsuit. To have standing, Virginia must show that it has been or will be harmed in some way that the Court can address. The DOJ argues that the Old Dominion is only "harmed" to the extent that PPACA violates a state law that was passed merely to provide a pretext for a suit against Obamacare: "[Virginia's] claim to standing rests entirely on a novel 'declaratory' state statute."
This argument proved unconvincing to Judge Hudson last year, but it is taken seriously by constitutional scholars of varying political stripes, among whom the issue has been vigorously debated since Cuccinelli first filed his lawsuit. For a writ of certiorari to be granted, at least four of the justices must vote in favor despite this arcane point of law. It may, therefore, be the rock upon which Virginia's petition founders. Knowing that other plaintiffs in the myriad constitutional challenges to Obamacare will have unassailable claims to standing, even the "conservative" justices may want to rule on a "cleaner" case. This is probably why Ken Cuccinelli admits that his request to bypass the normal appellate process is a long shot, and rates his chances of prevailing at "no higher than 60 percent" even in the long haul.
Most court watchers put Virginia's chances of getting the nod from four justices at very nearly zero. And they may well be right. On the other hand, the Supremes have a propensity to surprise even the most sophisticated "experts." When they sit around the table for Friday afternoon's Justices' Conference, no one else will be in the room. They will treat one another with the respect they deserve and they will say what they really think. If they decide to grant Virginia's petition, it will not be the first time this very exclusive club has produced raised eyebrows and sharp intakes of breath.