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Thursday, June 25, 2015
Cert justified?
I think the Court got it right in King v. Burwell, but I don't have anything to say on the merits. But I do want to briefly comment on how the majority explained its cert grant and some underlying procedure in the case.
On p. 7, at the end of Part I, Chief Justice Roberts, having summarized the decision of the lower court (the Fourth Circuit), says "[t]he same day that the Fourth Circuit issued its decision, the Court of Appeals for the District of Columbia [reached the opposite conclusion in a different case." The implication is that the Court granted cert for its typical reason--to resolve this circuit split. Sup. Ct. R. 10(a).
But that description is incomplete and arguably inaccurate. Two months after both circuit panels issued their opinions and two months before the Court granted cert in King, the en banc D.C. Circuit vacated that panel decision and granted rehearing en banc. As a result, at the time the Court conferenced and granted cert in King (in November), there was no circuit split, only one court of appeals decision interpreting the statute to allow for subsidies on all exchanges. In fact, the government used this to argue against cert in King, an argument the Court obviously rejected in taking the case.* The majority opinion does not even drop a footnote to give the bigger picture.
None of this matters, of course. Cert in King was certainly justified as an important question of federal law that should be settled by SCOTUS. Sup. Ct. R. 10(c). But then why even mention the circuit split that really wasn't? Or why not offer the full procedural context and the fact that the split went away. And might the answer have something to do with suspicions about the decision of the D.C. Circuit (a court with a majority Democratic appointees) to vacate the panel?[*] Once SCOTUS granted cert in King, the D.C. Circuit held the Halbig appeal in abeyance, pending King.
Posted by Howard Wasserman on June 25, 2015 at 02:31 PM in Howard Wasserman | Permalink
Comments
The pre-emptive cert split grant. Is this normal?
Don't get me wrong. Given the result, I'm not really complaining. But, hard not to be at least somewhat suspicious about the neutral reasons.
Posted by: Joe | Jun 25, 2015 3:14:10 PM
The pre-emptive cert split grant. Is this normal?
Don't get me wrong. Given the result, I'm not really complaining. But, hard not to be at least somewhat suspicious about the neutral reasons.
Posted by: Joe | Jun 25, 2015 3:14:07 PM
The circuit split could have re-emerged later with the Indiana or Oklahoma cases--the large stakes made this an easy decision to grant cert as I saw it. Far better to resolve it now than later.
Posted by: Chris | Jun 25, 2015 3:10:43 PM
Are cases like this generally decided on "important questions of federal law" grounds generally even if only two appellate courts decided the question and did so in the same way to uphold the government's position?
I take the disparate impact case could have been taken a long time ago on that ground, even without a circuit split. Fact is, this looks like an ideological grant rushed before the D.C. Cir. had a chance to decide it en banc. There was no rush. The way it was phrased along with a few other things (e.g., the alleged special "secrecy" to the way Congress wrote the law) has a bit of that b.s. to it.
Posted by: Joe | Jun 25, 2015 2:59:01 PM
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