After re-listing the case last week, the justices of the Supreme Court presumably considered Virginia v. Seblius again at their conference this past Friday, April 22. Again, the fact that the Court re-listed the case does not tell us much of anything--or at least anything that signals that it is granting or denying Virginia's petition for a writ of certiorari before judgment; there are a raft of possible explanations for the re-listing, and they could cut either way. The Court will release an order list tomorrow morning at 10:00 EDT. And then we will learn if the Court made a decision on Virgina's petition at Friday's conference.
If the Court does nothing and re-lists Virginia v. Sebelius for a second time, the odds begin to grow that the Court will deny the petition, and that the delay is the result of a justice writing an opinion or statement to accompany the denial. After all, the entire point of granting certiorari before judgment would be to expedite the Court's review of the issue. It would be somewhat strange for the justices to delay for several weeks its ultimate decision to invoke an extremely rare procedure whose sole purpose is to expedite review. More generally, after more than two re-listings of a petition, the Court rarely grants certiorari. Typically something else is going on.
Moreover, as we discussed last week, as every day passes, the amount by which granting review now, in this case, would actually expedite the Supreme Court's decision on the ACA's constitutionality grows smaller. We are apt to have one or more court of appeals decisions no later than August, which leaves ample time for the cert petitions to be filed, the Court to grant review, and the Court to schedule argument for the 2011 Term. That would mean argument in roughly March 2012, and a decision by June 2012. Granting Virginia's petition for review before judgment might speed up the process slightly, but probably by no more than a couple of months.
We may know more at 10:00 tomorrow morning. But then again, we may not.
