Last week I mentioned that the Supreme Court neglected to take action on an expedited review of the Affordable Care Act and the multiple Constitutional challenges that have been working their way through the lower courts. Virginia Attorney General Ken Cuccinelli and others have sought this expedited review to speed up the process and get a final determination from the Court before implementation of the law proceeded. But that’s not going to happen. The Court officially turned down the request today.
The decision to reject Virginia Attorney General Ken Cuccinelli II’s request for expedited review, announced routinely without elaboration or noted dissent, is not surprising. The court rarely takes up issues that have not received a full review in the nation’s appeals courts.
Various challenges to the health-care law championed by the Obama administration and passed by the Democratic-controlled Congress in 2010 are proceeding rapidly. Hearings are scheduled for next month in the U.S. Court of Appeals for the 4th Circuit in Richmond, and two other appellate courts will address the issue in June.
“The petition for a writ of certiorari before judgment is denied.” That was the entire statement.
As I said last week, this means that the likely scenario is a SCOTUS hearing after the appeals complete sometime in the next session, and a ruling right in the middle of the Presidential election in June 2012. It’s possible that the ruling gets delayed longer, especially because full implementation doesn’t wrap up until 2014. But that would be the expected schedule for the time being.
Sam Stein points out that Justice Elena Kagan did not recuse herself from the ruling:
Justice Elena Kagan, who recused herself from five similar fast-track decisions on Monday morning, decided to weigh in against Cuccinelli’s request for an expedited ruling.
There had been some concern among the law’s defenders that Kagan would remove herself from any consideration on the health care legislation, owing to her past work as President Obama’s Solicitor General. Kagan’s defenders routinely argued that, since she never worked on the Affordable Care Act while in that post, she had no inherent conflict of interest. Her decision to partake in Monday’s decision, suggests that she too sees little downside — ethically or politically — to rule on the topic.
If Clarence Thomas, whose wife worked as an anti-health care activist, isn’t recusing himself, I see no reason why Kagan should have to. Anthony Kennedy remains the crucial vote on this law, and he’ll have the opportunity to decide it after all the appeals come in.