Today marks exactly twelve weeks since the Fourth Circuit panel heard arguments in Virginia v. Sebelius and Liberty University v. Geithner. And tomorrow will be the eight-week anniversary of the argument before the Eleventh Circuit in Florida v. HHS. Given that the Sixth Circuit has already handed down its decision in a much shorter time (29 days), and that the certiorari window for the Supreme Court's 2011 Term is slowly (but surely) closing, one would suspect that the Fourth and Eleventh Circuits will be issuing their decisions shortly.
What is at stake? In some sense, not much. Most everyone believes that the issue is headed to the Supreme Court, and these are just the preliminaries. Of course, the sifting and vetting of the arguments has some importance in refining the relevant questions. And opinions like Judge Sutton's can really make a difference in altering the political dynamic and shaping the ideological cast of certain questions. But generally, the game that really matters will be played on a different field.
With one important exception.
To me, this seems unlikely, but it is at least possible. Suppose both the Fourth Circuit and the Eleventh Circuit uphold the ACA as constitutional. (I think the former is likely, the latter unlikely.) If all three circuits to have decided the question have come out the same way, would the Supreme Court even grant cert? I am not sure that it would.
There remains Seven-Sky v. Holder, to be argued before the D.C. Circuit on September 23. So even if the Fourth, Sixth, and Eleventh Circuits all upheld the Act, the D.C. Circuit could disagree and create the split. But that decision likely would not come down until the late fall or early winter. The Court could expedite the case, of course, but generally that timing would mean that the Court would not hear arguments until the 2012 Term -- and had down its decision some time in 2013, after the presidential election.
All of which is to say that, if the circuit courts all agree to uphold the ACA, it could put the Supreme Court in a much more complicated position in terms of deciding whether (and when) to hear the case. And it might mean that the case never even gets to the Court -- something the justices might actually be quite grateful for.
