Tuesday, August 23, 2011

An small update on timing and the Supreme Court

Just a quick thought on what the Court's granting of an extension in Thomas More Law Center v. Obama means for the potential timing of the Court's ultimate consideration.

The general practice at the Court is to circulate the petition and the brief in opposition roughly ten days after the response is filed. Here, that now means no earlier than October 8. After it is circulated, there is then a week for a clerk to write a pool memo, and then another week before it is considered at a conference. Given the Court's published 2011 October Term calendar (available here), that means the earliest conference at which the Justices are apt to consider the petition is now that scheduled for Friday, October 28 (the order list from which would be released on the following Monday, October 31).

In a case such as this--and given the existence of the other cases--it might be expected that the Court would re-list the TMLC petition at least once, and perhaps a few times, to see what else might unfold (in Florida v. HHS or any of the other cases). Indeed, the Court could wait until as late as mid-January and still have sufficient time to grant a cert petition, hear argument (in April), and decide the case on the merits by June 2012.

But it now appears that the earliest date the Court might grant review in a case challenging the constitutionality of the ACA is October 31.