Tuesday, April 12, 2011

U.S. files reply brief in Virginia v. Sebelius

In all the flurry of amicus filings at the Eleventh Circuit, I overlooked this: the United States has filed its reply brief in Virginia v. Sebelius at the Fourth Circuit. You can access the brief here

That means briefing is now complete in both of the Fourth Circuit cases, and the next important date is May 10--four weeks from today--when the case will be orally argued before a three-judge panel. The composition of that panel, per normal Fourth Circuit procedure, will be unknown until the morning of the argument.

That is, unless the Supreme Court grants Virginia's petition for a writ of certiorari before judgment. In that case, the Fourth Circuit would no longer have jurisdiction over Virginia v. Sebelius, and presumably would hold Liberty University v. Geithner until the Supreme Court had rules.

Again, the Supreme Court is scheduled to discuss Virginia v. Sebelius at this Friday's conference. (If the case does not make the justices' "discuss list," it will not actually be discussed.) The most likely moment at which we will know what the justices have decided with respect to Virginia's petition is at 10:00 a.m. Monday morning, when the Court issues its order list. But for a variety of reasons, we may not know at that moment. The decision may not come until later, in a subsequent order.