Friday, August 12, 2011

Timing and the Supreme Court

The question on everyone's mind, in light of today's decision, is the timing of the case getting to the Supreme Court. My very short take is that, at this point, it is hard to know. There is a very good chance the Court hears one of the cases this term, and hands down a decision in June 2012. But there remains at least a decent chance that the Court does not grant any of the cases until after January 2012, which would likely mean calendaring the case for the 2012 October Term, and a decision in the spring of 2013.

Here are a few things to consider:

* Given that there is now a split--and that a lower court has held a federal statute of this magnitude unconstitutional--the Supreme Court will definitely take the case, with the one possible exception being if the Eleventh Circuit takes Florida v. HHS en banc and reverses the panel, eliminating the split. This is possible, but probably quite unlikely. So the case is almost certainly headed to the Court.

* Given that the Eleventh Circuit unanimously upheld the ACA's Medicaid amendments, there seems a decent likelihood that the Court will not grant on that question. The one factor pointing the other way is that, if the Court granted on that question as well, it could have two discrete parts of the ACA to pass on, and upholding one while invalidating the other might seem less partisan or ideological (a la Grutter and Gratz or the Ten Commandments decisions).

* The administration might want to slow things down so that the decision comes after the 2012 election. For the administration would seem to have little to gain either way from the Court's decision. A decision upholding the ACA potentially energizes the Republican base, making clear that they need to elect officials who will repeal the ACA legislatively. But an invalidation would gut the one, principal domestic achievement of the Obama administration. Neither seems great politically five months in advance of the election.

* The administration could try to slow things down by (a) seeking en banc review in the Eleventh Circuit, (b) taking the full 90 days to file its certiorari petition, and (c) seeking extensions to file its brief in opposition in Thomas More Law Center and to file its petition for cert in this case.

* But the ball is not entirely in the administration's court. The Supreme Court could deny the administration any extensions, and it could grant certiorari in Thomas More Law Center, especially since there is now a split. Further, the states could also seek certiorari in Florida v. HHS, given that they lost on (1) the Medicaid issue, and (2) the severability question.

* It is hard to know what the justices think now about the timing of this. There are several reasons that the Court would prefer to have the Florida v. HHS, not the least of which is that it would be argued by Paul Clement. And perhaps the Court would be perfectly content to wait for its arrival, regardless of the timing, as there is really nothing compelling them to hear the case any sooner. But it is hard to know. Four justices might now think that the split now exists, they will have to decide it sooner or later, and now is as good a time as any.

All of this is to say that very much remains up in the air, and it is not all easy to determine the likely timing of getting to the Court. But after today, it is a very safe bet that the issue will get there eventually.