From the diaries by Erick

A number of people have asked me whether today’s rejection of Virginia’s request for expedited Supreme Court review of its ObamaCare challenge tells us anything about how the Court will ultimately rule on the statute’s constitutionality.  The answer is no.

It is folly to draw any conclusions because it’s extremely unusual for the Supreme Court to grant certiorari – that is, review – of a case while it’s still working its way through the lower federal courts.  The last time the Court did that in an important case was 2002, when it agreed to hear Gratz v. Bollinger, a challenge to race-based admissions at the University of Michigan, which had been heard but not yet decided by the U.S. Court of Appeals for the Sixth Circuit.  It’s so rare that it took a new, not-yet-jaded lawyer (me) to even suggest  making the request for a Writ of Certiorari Before Judgment.  And the writ would likely have been denied if the companion case, Grutter  v. Bollinger, had not already been decided by the Sixth Circuit, making it ready for Supreme Court review. In the instant situation, none of the companion cases to the Virginia suit have been decided by circuit courts.

Nobody doubts that the Supreme Court will eventually hear one or more of the lawsuits challenging the constitutionality of ObamaCare.  We don’t know whether Justice Kennedy will provide the fifth vote necessary to strike down all or part of the law, but his vote isn’t necessary to grant certiorari.  Only four votes are required for review and the Justices know those votes are virtually guaranteed when the time is right.  So it’s only the matter of timing that Justice Kennedy and his colleagues had in mind when they denied Virginia’s request.

If today’s denial tells us anything about a Justice’s state of mind concerning the merits of the case – which I doubt – it’s the mind of Chief Justice John Roberts. Roberts is more likely than Kennedy to strike down ObamaCare but less likely than Justices Thomas, Scalia and Alito.  With only four Justices needed to grant certiorari, that makes Roberts the likely swing vote on any petitions to review the ObamaCare cases that are decided on a close vote.  That said, the Justices’ votes on such petitions are generally not disclosed, so it will be difficult to prove my prediction right or wrong.