U.S. files its brief in opposition at the Supreme Court

Late this afternoon, the Office of the Solicitor General filed its brief in opposition to the petition for writ of certiorari before judgment in Virginia v. Sebelius, No. 10-1014. You can access the brief here (and you can also find it here, at SCOTUSblog).

Here is the crux of the SG's position, clipped from the introductory paragraph to the brief's argument section:

"The parties are currently briefing this case in the court of appeals on an expedited basis. The opening brief for the Secretary of Health and Human Services has already been filed in that court (along with 19 amici briefs), and oral argument is scheduled to be held in approximately 60 days. Especially given the court of appeals’ imminent consideration of this case, there is no basis for short-circuiting the normal course of appellate review by granting a writ of certiorari before judgment. Moreover, this case would make a poor vehicle to address the constitutionality of the Affordable Care Act’s minimum coverage provision because petitioner’s claim to standing rests entirely on a novel “declaratory” state statute (Pet. App. 66), and that threshold jurisdictional question could readily prevent the Court from reaching the merits of petitioner’s claim.  The petition should be denied."

In other words, (1) the Court is likely to get this issue (if not this precise case) next Term regardless, and (2) this particular case has a glaring vehicle issue.

The Supreme Court will now schedule consideration of Virginia's petition for an upcoming conference of the justices, likely in the next three weeks. Following that conference, the Court will issue its decision as to whether to grant review as part of the next order list (though sometimes cases are re-listed by the justices, causing some delay before resolution).