Monday, April 18, 2011

Why the Court is likely to deny cert

We are now about seven hours from the Court releasing its order list. And I am firmly convinced that the justices, without comment, will deny Virginia's petition for a writ of certiorari before judgment in Virginia v. Sebelius. The reason is quite straightforward.

Let's set aside the fact that granting certiorari before judgment is extremely unusual, such that doing so would immediately paint the Court as reaching out in an activist fashion to decide the question before necessary. Let's also set aside that Virginia has some very serious standing problems, making Virginia v. Sebelius potentially a bad vehicle for trying to decide the constitutionality of the minimum coverage provision. Finally, let's set aside the fact that Virginia's filings at the Court, in their content, have seemed geared more towards advancing the Virginia Attorney General's political career than exercising savvy strategic judgment in convincing the Court to expedite the case.

No, ignore all that. I think this comes down to a very simple, practical point: the Court is very likely to hear the case during its next term--the 2012 October Term--regardless. Even if the Court waits for a case to come up from one of the courts of appeals, it is likely to have a cert petition by November 2011. And that means the Court could hear the case in March or April of 2012, and decide the case by June 2012. Even if the Court were to grant Virginia's petition tomorrow, the effect would probably be to move up the Court's ultimate decision by only a couple of months. Given the potential costs--especially the potential political costs to the Court--how could that small time savings be worth it?

I do not think that it would. And that is why I suspect, at 10:00 EDT, we will see a simple order denying certiorari.