This is the date that the United States's response is due in Liberty University v. Geithner, the latest response date for any of the pending six petitions for certiorari. It is also the date that the United State's response is now due in Arizona v. United States (thanks to a recently granted extension), the case in which the federal government has sued (successfully to this point) to block the four most controversial provisions of Arizona's controversial S.B. 1070. To oversimplify a bit, Arizona's law requires that, in several circumstances, police officers must take steps to enforce federal immigration law and to investigate whether certain individuals are legally present in the United States.
I mention this only because, in landmark cases such as this, timing can matter. If the Court were to wait to receive all the responses in the ACA cases before making a cert decision, then it is on schedule to consider the petition in Arizona v. United States at the very same conference. As Lyle Denniston detailed yesterday, this would be the conference of December 9. And if the Court were to grant in both cases at that conference, it would be releasing a rather monumental order list that afternoon (or perhaps Monday morning, December 12).
More importantly, the two disputes are presently on track to be heard in late March or mid-April. And it is probably worth asking whether the Court might be chary to issue two huge decisions, within days of each other, on such highly-charged, highly-partisan issues, in a manner that risks creating the perception that the Court is acting "politically"--particularly if both cases are decided according to an ideologically predictable 5-4 split. Moreover, this concern might grow even more acute if the Court grants in Fisher v. University of Texas, the case challenging the University's use of race in undergraduate admissions (which is also on track, if certiorari is granted, to be heard this spring).
Who knows how much these considerations might affect the justices, either consciously or unconsciously? Moreover, who knows exactly what practical steps they might take, even if these considerations do matter? One response would be to defer or deny review in Arizona or Fisher. But if all three cases end up at the Court this spring--a distinct possibility at this point--there seems a decent chance that exactly how the Court resolves Arizona and Fisher will affect its approach to the ACA.
