Supreme Court Denies Virginia’s Effort To Get Expedited Review

As expected, Virginia Attorney General Ken Cuccinelli’s effort to bypass the appellate court has failed with a denial at the United States Supreme Court. The Rule 11 motion was turned down — as it is in the vast majority of cases. The Obama Administration opposed the motion and is expected to continue to try to slow the momentum of the challenge.

Cuccinelli has the cleanest challenge in that it focused only on the mandatory health insurance provision as opposed to the broader Florida action. The latter action, however, has now been narrowed.

There were plausible arguments for the motion, but the fact that the mandatory provision will not kick in for a year or so probably undermined the effort. Even more significant was the fact that various appellate courts are preparing to hear or rule on the matter. The Court prefers to have lower courts be heard on such issues before ruling.

Here is the rule:

Rule 11. Certiorari to a United States Court of Appeals before Judgment

A petition for a writ of certiorari to review a case pending in a United States court of appeals, before judgment is entered in that court, will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court. See 28 U. S. C. § 2101(e).

Virginia will now face the Fourth Circuit panel in May — and a difficult challenge over standing. It is an ironic position for challengers to the heath care act. Conservatives jurists have been steadily narrowing standing for decades — making it increasingly difficult to get judicial review in actions against the government. Many of us have criticized this trend as creating areas where virtually no one can enforce constitutional principles or challenge a law. Now the greatest challenge in this and other cases may be the more conservative judges and justices.

The rejection also means that the health care issue will likely move to the Supreme Court in the midst of the final year of campaigning for the White House. Polls show the majority of the public opposed to the plan with a majority of states now seeking to strike down the act in federal court.

Source: National Journal

Jonathan Turley

10 thoughts on “Supreme Court Denies Virginia’s Effort To Get Expedited Review”

  1. Dredd,

    Missed the one on the link about Thomas….Prosser was the only known creep referred to…do you have a better link?

  2. rafflaw,

    The prediction markets have the likelihood of the SC finding the healthcare law unconstitutional by December 31, 2012 at 37%, with an ask at 45% for taking new positions. Considering all the uncertainty involved, that’s a pretty high figure. Thinly traded contract so far.

  3. Swarthmore,
    I know that some here don’t agree with me, but I don’t expect the Court to rule against the Health Care law, but I wouldn’t put anything past the Roberts cabal. I also believe that most polls, when people are told what is in the bill, show the public in favor of it.

  4. Nada, you’re wrong. 200+ years of precedent since Congress passed the Judiciary Act of 1789: the Supreme Court may in fact delegate exercise of its original jurisdiction to lower courts and exercise appellate review. Even in those few cases where it exercises original jurisdiction, the court usually delegates to a special master the job of assembling the facts. It’s a matter of judicial economy: if the Justices tried to function like a regular trial court, they’d have no time for the rest of their docket.

    Cucinelli made no mistake. The Court controls its calendar – not the litigants.

  5. The mistake made by Cuccinelli was that he filed the original in the District Court rather than directly with the Supreme Court.

    Article III “those in which a state shall be party, the Supreme Court shall have original jurisdiction”.

    Only by Constitutional Amendment can the Supreme Court refuse the original jurisdiction granted by the Constitution.

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