Wednesday, February 9, 2011

Virginia files its petition for cert at the Supreme Court

The Commonwealth of Virginia today has filed its petition for a writ of certiorari before judgment, pursuant to Supreme Court Rule 11, in Virginia v. Sebelius. You can access the petition here.

I will try to analyze the content of the petition later today and have a post up this evening. For now, let me reiterate two things: (1) it is extremely rare for the Court to grant cert before judgment--I do not think it has happened in 23 years, except to consolidate two cases or to GVR in light of a recent decision; and (2) setting that matter aside, there is a significant, lurking "vehicle problem" with Virginia's case, which is that there is good reason to believe that the Commonwealth lacks Article III standing.

Per Supreme Court rules, the United States is not required to respond. (The Department of Justice waived its right to file a brief in opposition in Baldwin v. Sebelius, where the plaintiffs similarly sought cert before judgment. That case is now pending in the Ninth Circuit.) If the United States does file a BIO, it is due in 30 days, on March 9, though the Department of Justice could seek an extension.

In the meantime, there will be no changes to the briefing and argument schedule in the Fourth Circuit.

UPDATE: Kevin Russell at SCOTUSblog (and a Supreme Court advocate in his own right) has this useful primer on the Court's granting of certiorari before judgment. The short of it is that the Court's historical practice strongly confirms that it is highly unlikely here.