Yesterday, the Supreme Court denied Virginia’s motion to bypass the appellate court and go directly to the Supreme Court in its challenge to the Obamacare litigation.
The Court’s decision not to hear the case, delivered in an order without comment, was not surprising. While the procedure exists for the Court to hear cases after a decision of the district court but before a decision of the court of appeals, it almost never does. And when I say “almost never does,” let me be clear: Playing the lottery probably has better odds.
It is black-letter law that the Supreme Court’s discretionary decision refusing to hear a case has no precedential value. All that the order signals for certain is that there were not four votes to hear the case right now. We can, however, surmise that the Court wanted to follow the ordinary course and to have the advantage of the decisions of the court(s) of appeal before they all but inevitably take the case.
The Supreme Court will not have to wait long. The Fourth Circuit Court of Appeals has taken Virginia’s case on an expedited calendar and is holding oral arguments on May 10, while the Eleventh Circuit is hearing oral arguments on an expedited basis on June 8 in a challenge brought by a majority of the states and the National Federation of Independent Business. Both of these courts are likely to issue their opinions by early fall, which would permit the Supreme Court to hear the case and issue a ruling as soon as June 2012.
What is interesting about the order is that it appears that Justice Elena Kagan took part in the vote—there is no mention that she recused herself—which suggests that, unless she changes her position, she is likely to participate in the cases challenging Obamacare, including the Supreme Court’s ultimate review of the matter. This despite growing concerns about how much involvement Kagan may have had in early deliberations about the legislation and then potential litigation while she was Solicitor General—and whether this involvement merits recusal.
In assessing the issue of recusal, Professor Richard Epstein argues:
The claim here is far from frivolous. It is not as though people thought that no constitutional challenge would be lodged against the statute. And it seems highly unlikely that the chief appellate lawyer of the United States would not weigh in on a statute that is likely to make it to the Supreme Court. Were this an ordinary case, I have no doubt that Kagan would bow out. But with the stakes so high, and the political terrain so uncertain, one can only wonder.
Why is it far from frivolous? Because the statute governing judicial recusal states that a judge or justice “shall” disqualify herself in the following circumstances: “Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy[.]” 28 U.S.C. § 455(b)(3) (emphasis added).
Recent e-mails from Kagan’s days at the Department of Justice obtained under the Freedom of Information Act raise more questions than they answer about her possible participation in early deliberations.
For example, on March 21, 2010, Neal Katyal, then her deputy, forwarded an e-mail to Kagan about a meeting that Associate Attorney General Tom Perrelli was organizing at the White House to discuss strategies to counter lawsuits challenging Obamacare. Katyal wrote:
This is the first I’ve heard of this. I think you should go, no? I will, regardless, but feel like this is litigation of singular importance.
Kagan responded moments later:
What’s your phone number?
Adam Liptak of The New York Times cites this exchange yesterday in support of his conclusion that the documents obtained “appear to confirm that [Kagan] took pains to avoid involvement in meetings concerning challenges to the health case [sic] law.” It is difficult to respond to Liptak’s “took pains to avoid involvement” conclusion other than to say that the facts he cites do not support his conclusion. Rather, it is clear from the quoted exchange that Kagan was shifting the conversation off of e-mail—the obvious reason to do so being to avoid a discoverable paper trail. Beyond that, we don’t know anything, because she did actually take pains to assure that the content of the conversation was not available for subsequent review.