Commentary
As lower courts move along quite rapidly with challenges to President Obama’s new health care law, the issue still seems some time away from reaching the Supreme Court — perhaps a year or more, by most estimates. But that may not necessarily be so. To test the thesis, here is a two-question quiz for those interested in how the Supreme Court works:
First, how often does the Supreme Court step in to decide an issue when the differing opinions in lower courts only have been issued at the trial level — that is, in U.S. District Courts — and not in the federal Courts of Appeals?
Second, just how eager is the Supreme Court to start deciding basic questions on whether the President’s signature domestic initiative will survive constitutional review?
The answer to the first is already known; the answer to the second may begin to emerge by the first week in November (but not, incidentally, because that is election week, and the health care plan is a political issue this year).
It is rare, indeed, for the Court to grant review of a legal question when the only conflict is that District Courts have ruled differently on it. As a matter of fact, District Courts disagree all the time; if the Court were to try to referee the conflicts at that level, it would have little or no time for anything else. So, let’s say that the chance of review of dueling decisions by District judges is, at best, a very long shot.
The answer to the second is, at this point, subject only to speculation. The Court does not routinely reach out to take on tough cases unless it is close to having little option but to do so. Cases come to it in due course, in more than sufficient numbers, that the Court usually is content to wait. But the word among some Court-watchers these days is that the current Supreme Court may not be so hesitant. A couple of recent examples: the Court may have decided a good deal more than it needed to do, say, on campaign finance regulation, and on voluntary school desegregation plans, so there is at least some “reaching out” for hot-button issues.
Might it do so on at least some aspects of health care litigation? Â The opportunity is there, it turns out.
The Court is now scheduled to consider, at its private Conference on Nov. 5, a case filed by a California-based conservative legal advocacy group, the Pacific Justice Institute, and by a former California state legislator, Steve Baldwin, who is a devotee of limited government and now objects to the idea that the government could compel him to buy health insurance. The Institute also objects to parts of the new law that will affect it as an employer. Each has several other complaints about the law, too.
Their case was among the early group of lawsuits aimed, in particular, at the new law’s requirement that, by 2014, virtually every one in the country must have health insurance, or pay a penalty. The Baldwin case was filed in U.S. District Court in San Diego on May 14, two months after President Obama signed into law the Patient Protection and Affordable Care Act. On August 27, U.S. District Judge Dana M. Sabraw of San Diego ruled that neither Baldwin nor the Pacific Justice Institute could show at this point that they would actually suffer any injury from the law, so they lacked “standing” to sue. He dismissed their case, though allowing them to pursue it again in the future if, later, they could shown “injury” from the Act’s operation.
Three other District judges, however, have refused to throw out similar challenges to the health care mandate, so there is now a very explicit split on whether it is too early for anyone to sue.
In the Baldwin case, the lawyers have filed an appeal in the Ninth Circuit (docketed as 10-56374); a briefing schedule has not yet been set. But Steve Baldwin and the Institute are not interested in waiting for the Circuit Court to decide. On September 15, they filed a petition for review in the Supreme Court, prior to any decision by the Circuit Court (Baldwin, et al., v. Sebelius, et al., 10-369). The attorneys have since filed two supplemental briefs in the Supreme Court, seeking to bolster their argument that the Court should step in now because of the division in the District Courts over who may and who may not sue to challenge the health insurance mandate and other parts of the new law. (Their petition can be found here. The two follow-up briefs describing later developments in District Courts are here and here. The two questions presented focus solely on the health insurance mandate — who may sue to challenge it, and its constitutionality.)
Since their lawsuit was aimed at various federal officials, the U.S. Solicitor General had a right to respond; its opposition brief was due on Monday of this week. On that day, the Solicitor General waived the right to reply — a decision that hardly was surprising, given how rarely the Court steps into disputes among the District Courts.
The initial prospects of the case are likely to be known shortly. The next step to watch for is the chance that the Supreme Court would be enough interested in the issue to ask for a response from the Solicitor General following the waiver. Such a request would be likely before the Nov. 5 Conference.
If no such request is made, then in all likelihood the case will simply be denied review. That would leave Baldwin and the Institute to take their chances before the Ninth Circuit. Their case apparently is the first one to reach that level in the federal judiciary. If a request for the government’s response is made, then the case would have a slightly improved chance, but still no guarantee — especially if the Solicitor General were to suggest a denial of review.
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