Thursday, February 3, 2011

Virginia to seek immediate review at the Supreme Court

Virginia attorney general Kenneth Cuccinelli has announced this morning that he will seek a direct appeal to the Supreme Court in Virginia v. Sebelius, skipping the Fourth Circuit. News stories are here, here, and here, and Cuccinelli's press release is here.

The relevant provision in the Supreme Court's rules is Rule 11, which provides as follows (in full):

Rule 11. Certiorari to a United States Court of Appeals Before Judgment
A petition for a writ of certiorari to review a case pending in a United States court of appeals, before judgment is en­tered in that court, will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require im­mediate determination in this Court. See 28 U.S.C. §2101(e).

It is extremely rare for the Court to grant certiorari before judgment of a court of appeals. (This procedure is quite different from taking an appeal from the judgment of a specially constituted three-judge district court, which is relatively common, such as this Term in Schwarzenegger v. Plata.) A quick Westlaw search (in which I certainly may have missed something) indicates that the last time the Court did so--setting aside cases in which the Court took a case and consolidated it with another one coming from the court of appeals, or simply granted cert to vacate and remand in light of a recent decision--was 23 years ago in United States v. Mistretta. There, the district court had declared the newly minted U.S. Sentencing Guidelines unconstitutional as a violation of separation of powers. And the need for quick judicial resolution was extremely pressing--it affected the sentencing of every single federal defendant in the country.

Here, although many people would like to know the answer, the urgency is not nearly so great. Moreover, for reasons that I explained yesterday, there is a serious question whether Virginia even has standing to press its claim that the minimum essential coverage requirement is unconstitutional.

Thus, it seems unlikely that the Court would grant Virginia's petition for cert. But of course, stranger things have happened. I was one of many who claimed that the Supreme Court would never want to get involved in a matter a politically dicey as the resolution of a presidential election.

UPDATE: The United States will, as expected, oppose a direct appeal to the Court. Here is the relevant paragraph from the N.Y. Times story: "Tracy Schmaler, a spokeswoman for the Justice Department, said the agency continued “to believe this case should follow the ordinary course” so that legal arguments could be fully developed before being presented to the Supreme Court. She pointed out that the insurance mandate does not take effect until 2014 and that the Fourth Circuit has already expedited its schedule by setting oral arguments for May."