Breaking: Supreme Court rejects fast-track appeal on ObamaCare; Update: Cuccinelli says “Disappointing, not surprising”

posted at 10:45 am on April 25, 2011 by Ed Morrissey

The Supreme Court is in no rush to either consider challenges to ObamaCare or consolidate them, at least not at the moment.  Earlier today, the court passed on an opportunity to expedite the appeal process, turning down Virginia’s Ken Cuccinelli, despite his appeal for a fast-track review on constitutional grounds:

The Supreme Court rejected a call Monday from Virginia’s attorney general to depart from its usual practice and put review of the health care law on a fast track. Instead, judicial review of President Barack Obama’s signature legislation will continue in federal appeals courts.

The justices turned down a request by Virginia Attorney General Ken Cuccinelli, a leading opponent of the law, to resolve questions about its constitutionality quickly. The Obama administration opposed Cuccinelli’s plea.

Only rarely, in wartime or a constitutional crisis, does the court step into a legal fight before the issues are aired in appellate courts. Hearings already are scheduled in May and June in three appeals courts.

The case still could reach the high court in time for a decision by early summer 2012.

The court had an opportunity to simplify matters ahead of time by accepting the expedited appeal and consolidating the cases.  Their decision to stay out of the process at this time may mean that they are interested in hearing from the appeals courts on the wider variety of arguments already in play, rather than focus mainly on the Virginia case.  It also may indicate that the justices aren’t concerned about the appeals taking a very long time to get to them anyway; as the AP notes, they’ll still probably get at least one of the cases in the 2011-12 term, giving them plenty of time to rule on the law before much of it takes effect.

The report also speculates that Elena Kagan took part in the deliberations to reject the expedited appeal.  That’s based on the lack of announcement of a recusal rather than any direct indication, as these rejections rarely produce any statement from the court.  If Kagan didn’t recuse herself from this decision, it would hint that she won’t recuse herself from any ObamaCare deliberations despite her role as Solicitor General for Obama and the possibility that she gave the administration legal advice on crafting and defending the law.  That’s not exactly a surprise either; only Kagan can force herself into a recusal, and the chance to weigh in on one of the most critical Supreme Court decisions in decades is going to outweigh any qualms over conflicts of interest.

Update: I just received an e-mail statement from AG Ken Cuccinelli’s office declaring the decision “disappointing … not surprising”:

Virginia Attorney General Ken Cuccinelli reacted today to the United States Supreme Court’s decision not to expedite Virginia’s lawsuit against the federal health care law and its mandate to force individuals to buy health insurance:

“We asked the United States Supreme Court for expedited review of our lawsuit because Virginia and other states are already spending huge sums to implement their portions of the health care act, businesses are already making decisions about whether to cut or keep employee health plans, and citizens are in limbo until the Supreme Court rules.  Asking the court to expedite our lawsuit was about removing this crippling and costly uncertainty as quickly as possible.  We were gratified that both Republicans and Democrats in Virginia supported the effort to expedite.

“The Supreme Court rarely expedites cases under its Rule 11.  Expediting our case would have been the exception and so, although disappointing, this is not surprising.

We look forward to making our arguments in the U.S. Fourth Circuit Court of Appeals on the morning of May 10th here in Richmond. This case’s logical end point is the Supreme Court.  It will simply have to make its way through the Fourth Circuit first,” Cuccinelli said.

My guess is that the Supreme Court doesn’t want to draw any unnecessary fire for political motivations in its ultimate decision on the merits, and with the cases almost certainly moving quickly enough as it is, they can afford to wait for the processes to play out.


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taking their time, sounds like they might be serious about overturning.

rob verdi on April 25, 2011 at 10:48 AM

I think that is a pretty good signal that Kennedy is on the fence and leaning right about the individual mandate. If Libs thought they had the votes they would have pushed this. Instead they begged Kennedy to give them more time to make a better argument.

Rocks on April 25, 2011 at 10:49 AM

Wasn’t fast tracking a stretch to begin with?

Apologetic California on April 25, 2011 at 10:49 AM

This is a good reason to ask for an injunction blocking further implementation of the disastrous Obamacare.

slickwillie2001 on April 25, 2011 at 10:51 AM

Hope you’re right, Rob. It’s frightening how much the “Rule of Law” seems to be ignored these days…

TeresainFortWorth on April 25, 2011 at 10:51 AM

Are we to take this as good news or bad news?

Indy82 on April 25, 2011 at 10:53 AM

Things take time to be etched in stone.

repvoter on April 25, 2011 at 10:54 AM

My two cents from the Headlines thread.

If SCOTUS had expedited the appeals and eventually overturned Obamacare, liberals would scream forever that some of the justices had circumvented the normal judicial process.

If I recall, three cases are crawling up the Fourth, Ninth, and Eleventh Circuits. When Obamacare is overturned, it’ll be one more thumping that the liberal Ninth Circuit takes.

In the meantime, we’ll have another year or two of skyrocketing health insurance premiums. People will become increasingly disenchanted with Obamacare. So by the time it’s overturned, most of the country will be saying, “Thank God.”

BuckeyeSam on April 25, 2011 at 10:50 AM

BuckeyeSam on April 25, 2011 at 10:55 AM

So is the SC joining the gangster government?

tarpon on April 25, 2011 at 10:57 AM

Note that little Bammie also wants to slam the door on any competition for Obamacare: Obama Talks to Curb Medical Tourism to India

slickwillie2001 on April 25, 2011 at 10:59 AM

Good news, all things considered.

Also note-worthy (although unsurprising) that neither Thomas nor Kagan recused themselves.

Are we to take this as good news or bad news?

Indy82 on April 25, 2011 at 10:53 AM

Well it’s certainly not good news for you, but it’s not really bad news either. The denial of cert doesn’t indicate they don’t think the plaintiff’s claims have merit. It probably just means they want to see how/if the Circuit Courts resolve the issue first.

crr6 on April 25, 2011 at 11:01 AM

Are we to take this as good news or bad news?

Indy82 on April 25, 2011 at 10:53 AM

Obama’s signature legislation now scheduled to become the SCOTUS cage match of our lifetime on the eve of his re-election? With a free sideshow involving one of his appointees refusing to recuse herself despite obvious conflicts of interest?

I’m going with at least partly sunny.

TexasDan on April 25, 2011 at 11:01 AM

The case still could reach the high court in time for a decision by early summer 2012.

Hmm…..isn’t there something happening shortly after that…say…Nov. 2012.

rslancer14 on April 25, 2011 at 11:01 AM

crr6 on April 25, 2011 at 11:01 AM

See Rocks @ 10:49am and Buckeye Sam @ 10:55am for the truth. Did you ever hear that a little bit of knowledge can be a dangerous thing? You have a teeny bit of knowledge gleamed from liberal law books.

red131 on April 25, 2011 at 11:05 AM

More court news…WTF?


Clement firm drops DOMA case

The statement is silent on the reasons for the decision, but the firm faced protests at its Atlanta office and a national campaign against it. And now the House majority is looking for a new lawyer.

Rocks on April 25, 2011 at 11:06 AM

Any good jurists should prefer to have matters such as this settled politically rather through the court system. I would guess if they could avoid this case until after the 2012 election, the would avoid it.

WashJeff on April 25, 2011 at 11:07 AM

Also note-worthy (although unsurprising) that neither Thomas nor Kagan recused themselves.

crr6 on April 25, 2011 at 11:01 AM

Why would Thomas recuse himself? He did nothing wrong.

Del Dolemonte on April 25, 2011 at 11:08 AM

SCOTUS should have it decided before the ’12 election. I don’t think any publicity about ObamaCare will be good for Barry’s re-election.

cartooner on April 25, 2011 at 11:08 AM

If Kagan didn’t recuse herself from this decision, it would hint that she won’t recuse herself from any ObamaCare deliberations despite her role as Solicitor General for Obama and the possibility that she gave the administration legal advice on crafting and defending the law.

Why you not talking about Justice Thomas? His wife is a lobbyist for the Heretage (sic) Foundation, yo. She getting paid to talk smack about the bill. If she doin’ that then Thomas gotta go, too. That pillow talk gotta be something. And what dis about Kagan giving out legal advice on the bill to my man, Big-O…you been watching too much Faux News. It the Koch brothers that dit this. They be evil. And Roger Murdoch. I hate him and Rupert Ailes, too. (average Huffpo commenter)

No, seriously, Google “Republicans call for Kagan to recuse herself from healthcare deliberations” and have a good ol’ laugh.

RepubChica on April 25, 2011 at 11:09 AM

taking their time, sounds like they might be serious about overturning.

rob verdi on April 25, 2011 at 10:48 AM

I hope you’re right. As for the appeals courts, the Fourth Circuit for Cuccinelli is going to be far kinder than the Eleventh Circuit for all of the other states, I suspect. If we’re lucky, this thing gets on the docket by the 2012 election, and we get to let the Bamster stew in Obamacare headlines for months on end.

Overturning would just be icing on the cake if Obama loses.

KingGold on April 25, 2011 at 11:09 AM

If (big IF) this law is overturned, Turdboy will claim it’s not his legislation anyway. Nothing to see here. Move along.

SKYFOX on April 25, 2011 at 11:12 AM

It’s not Thomas who should recuse themself. It’s Kagan.

kingsjester on April 25, 2011 at 11:12 AM

As for the appeals courts, the Fourth Circuit for Cuccinelli is going to be far kinder than the Eleventh Circuit for all of the other states, I suspect. If we’re lucky, this thing gets on the docket by the 2012 election, and we get to let the Bamster stew in Obamacare headlines for months on end.

Overturning would just be icing on the cake if Obama loses.

KingGold on April 25, 2011 at 11:09 AM

I’m one of those stodgy old-fashioned types that believes the states don’t need a court’s permission to ignore an unconstitutional law, anyhow. Your mileage may vary, of course.

gryphon202 on April 25, 2011 at 11:13 AM

You know there are Hospital administrators out there that have to plan either way on this.

Can we afford to waste money on this bureaucratic monstrosity any more?

Chip on April 25, 2011 at 11:13 AM

I can imagine their docket is pretty full…to take a case like this out of “order”, would probably push many other cases back months or years.
Perhaps the normal process and deliberation will actually be quicker overall than fast-tracking this complex issue, and letting other issues be delayed.

right2bright on April 25, 2011 at 11:15 AM

I’m one of those stodgy old-fashioned types that believes the states don’t need a court’s permission to ignore an unconstitutional law, anyhow. Your mileage may vary, of course.

gryphon202 on April 25, 2011 at 11:13 AM

Y’all come to Texas, now, if you’re not already here.

TexasDan on April 25, 2011 at 11:16 AM

The Court doesn’t want to be seen as political, thus they’re letting the normal process take shape. I’m going to view this as good.

rbj on April 25, 2011 at 11:17 AM

I’m one of those stodgy old-fashioned types that believes the states don’t need a court’s permission to ignore an unconstitutional law, anyhow. Your mileage may vary, of course.

gryphon202 on April 25, 2011 at 11:13 AM

In this case, it certainly does. The three separate powers of the federal government are the legislature, executive and the judiciary, not the states. Nullification is not a legal tactic so far as I’m concerned.

KingGold on April 25, 2011 at 11:19 AM

My guess is that the Supreme Court doesn’t want to draw any unnecessary fire for political motivations in its ultimate decision on the merits, and with the cases almost certainly moving quickly enough as it is, they can afford to wait for the processes to play out.

I don’t really buy that. The Libs haven’t shown a lot of restraint lately if they think they can push something through. I think Obama would love to take the Individual Mandate question off the table if he could so he could demagogue on benefits in the campaign.

Rocks on April 25, 2011 at 11:22 AM

Are we to take this as good news or bad news?
Indy82 on April 25, 2011 at 10:53 AM

It’s neither at this point. As it is, a few more appeals decisions ruling against the mandate might be good to help sway Kennedy towards overturning the whole thing.

Vyce on April 25, 2011 at 11:22 AM

About this time in 2012 would be nice. :)

RedNewEnglander on April 25, 2011 at 11:24 AM

They’re waiting so they won’t fire up Barry Soetoro’s base before the next election.

SouthernGent on April 25, 2011 at 11:25 AM

SCOTUS should have it decided before the ’12 election. I don’t think any publicity about ObamaCare will be good for Barry’s re-election.

cartooner on April 25, 2011 at 11:08 AM

No, let the SCOTUS take their time and let ObamaCare hang around Barry’s neck through the primaries. It’s just one more campaign commercial that writes itself.

Knucklehead on April 25, 2011 at 11:28 AM

It’s not Thomas who should recuse themself. It’s Kagan.

kingsjester on April 25, 2011 at 11:12 AM

Neither should. The hyperventilating from the left over Thomas is ridiculous, as is the whining from the right over Kagan.

Update: I just received an e-mail statement from AG Ken Cuccinelli’s office declaring the decision “disappointing … not surprising”:

Well, yeah. His certainly didn’t do himself any favors with his bizarre cert petition.

crr6 on April 25, 2011 at 11:29 AM

I think Obama would love to take the Individual Mandate question off the table if he could so he could demagogue on benefits in the campaign.

Rocks on April 25, 2011 at 11:22 AM

But that’s already not an option. Unless the SC is willing to throw the entire question of stare decisis out the window, there is the niggling little matter of no severability clause. It’s hard for me to fathom the highest court in the land choosing to simply ignore that fact in making whatever decision they arrive at.

gryphon202 on April 25, 2011 at 11:30 AM

My concern is over the health of the conservative justices. I would rather the court decide the issue this year than a court with another Obama apointment.

aunursa on April 25, 2011 at 11:33 AM

The hyperventilating from the left over Thomas is ridiculous, as is the whining from the right over Kagan.

crr6 on April 25, 2011 at 11:29 AM

You don’t think there’s even an arguable case for Kagan’s recusal, considering that she actually helped get the bill passed? Personally, I’m not hellbent-for-leather on seeing Kagan recuse herself, but I think it’s rather specious to argue that both she and Clarence Thomas had the same role in debating the bill’s merits.

gryphon202 on April 25, 2011 at 11:33 AM

When all the shouting and crying is done, it’s going to have to be the Legislative branch that will have to undo this monster. Depending on the Judiciary to take care of it is a long shot. They have just given the Republicans a gift. The Senate will have to turn red. That bill had better be on President Palin’s desk on January 20, 2013 so she can sign it before going to the Inaugral Ball.

BetseyRoss on April 25, 2011 at 11:33 AM

But that’s already not an option. Unless the SC is willing to throw the entire question of stare decisis out the window, there is the niggling little matter of no severability clause. It’s hard for me to fathom the highest court in the land choosing to simply ignore that fact in making whatever decision they arrive at.

gryphon202 on April 25, 2011 at 11:30 AM

That’s what I mean. If the Admin and the Liberals on the court thought they had the votes to uphold the Individual Mandate they would have voted for an expedited review.

Rocks on April 25, 2011 at 11:34 AM

I’m not sure this means much of anything. SCOTUS is like the court of last resort. It makes sense they want this to go through the lower courts as much as possible before going to SCOTUS.

Of course the right will spin is as positive and so will the left. I just don’t think it’s either.

angryed on April 25, 2011 at 11:34 AM

Of course the right will spin is as positive and so will the left. I just don’t think it’s either.

angryed on April 25, 2011 at 11:34 AM

I’m inclined to agree. While I don’t agree with crr6′s assessment of Cuccineli’s motion as “bizarre,” I think this outcome is a reason for cautious optimism.

gryphon202 on April 25, 2011 at 11:38 AM

You don’t think there’s even an arguable case for Kagan’s recusal

gryphon202 on April 25, 2011 at 11:33 AM

Not from anything I’ve read. All indications are that she was walled-off from any substantive involvement in the matter from the very beginning.

crr6 on April 25, 2011 at 11:39 AM

The hyperventilating from the left over Thomas is ridiculous, as is the whining from the right over Kagan.
crr6 on April 25, 2011 at 11:29 AM

Do you have a law degree?

Speaking as a lawyer, I will say that a situation such as Kagan’s is a more black-and-white, concrete reason for recusal as it is traditionally done.

Vyce on April 25, 2011 at 11:40 AM

Well, the court may not feel like to get their hands dirty, BUT if this is not considered a Constitutional crisis, that a sweeping change to transform our Republic, I don’t know what is.

The Executive branch and the Legislative branch failed the citizens, now the last branch also failed us.

Sir Napsalot on April 25, 2011 at 11:40 AM

I’m inclined to agree. While I don’t agree with crr6′s assessment of Cuccineli’s motion as “bizarre,”

gryphon202 on April 25, 2011 at 11:38 AM

I’m curious as to what you’re basing your opinion off of, because everyone I’ve talked to w/some level of expertise on the manner agrees with me.

1) Have you read it?
2) Have you read other cert petitions?

crr6 on April 25, 2011 at 11:41 AM

But that’s already not an option. Unless the SC is willing to throw the entire question of stare decisis out the window, there is the niggling little matter of no severability clause. It’s hard for me to fathom the highest court in the land choosing to simply ignore that fact in making whatever decision they arrive at.
gryphon202 on April 25, 2011 at 11:30 AM

Heh.

Look, friend, not to be overly cynical here, but certain Justices on the court right now have not shown a particular preference for the concept of stare decisis, except when it suits them.

Vyce on April 25, 2011 at 11:42 AM

Do you have a law degree?

Not yet, no. I’m a law student.

Speaking as a lawyer, I will say that a situation such as Kagan’s is a more black-and-white, concrete reason for recusal as it is traditionally done.

Vyce on April 25, 2011 at 11:40 AM

Right, except there’s absolutely no evidence that she worked on the case when she was in the SG’s office.

crr6 on April 25, 2011 at 11:43 AM

Not from anything I’ve read. All indications are that she was walled-off from any substantive involvement in the matter from the very beginning.

crr6 on April 25, 2011 at 11:39 AM

What was Kagan’s job? To give legal advice to the Whitehouse? What was the biggest thing going on while that was her job? She was walled off from doing her job? Does that make sense to you? If that is true you have to have the ability to believe that the Whitehouse hired her to do nothing. I guess anything is possible with these knuckleheads… but this is really a stretch.

petunia on April 25, 2011 at 11:47 AM

I’m curious as to what you’re basing your opinion off of, because everyone I’ve talked to w/some level of expertise on the manner agrees with me.

1) Have you read it?
2) Have you read other cert petitions?

crr6 on April 25, 2011 at 11:41 AM

As opinions, by definition, are neither provable nor falsifiable, I owe you no explanation. I’m sure you probably wouldn’t understand why I think Obama’s effort to take over health care is ipso facto “bizarre,” but the unusual circumstances of Cuccinelli’s cert petition doesn’t mean that it was crazy and unjustifiable to begin with…does it? Or did “bizarre” become some sort of exacting legal language while I was asleep last night?

gryphon202 on April 25, 2011 at 11:47 AM

Right, except there’s absolutely no evidence that she worked on the case when she was in the SG’s office.

crr6 on April 25, 2011 at 11:43 AM

You’re a lawyer in training! You should have learned by now that absence of evidence isn’t evidence of absence. What happened to the “appearance of conflict-of-interest” standard? Or how about “the seriousness of the charge merits action?”

gryphon202 on April 25, 2011 at 11:48 AM

Do you have a law degree?

Vyce on April 25, 2011 at 11:40 AM

No but I play a damn good law student on blogs.

– Crr6

angryed on April 25, 2011 at 11:49 AM

Maybe SCOTUS is hoping that this gets settled politically, in fact if not in law, before it reaches them. Otherwise they might be at each others’ throats and the opinion might be written by the last Justice standing.

njcommuter on April 25, 2011 at 11:49 AM

Look, friend, not to be overly cynical here, but certain Justices on the court right now have not shown a particular preference for the concept of stare decisis, except when it suits them.

Vyce on April 25, 2011 at 11:42 AM

Yeah yeah, I know. I just don’t want to be that cynical. Not today.

gryphon202 on April 25, 2011 at 11:49 AM

If that is true you have to have the ability to believe that the Whitehouse hired her to do nothing. I guess anything is possible with these knuckleheads… but this is really a stretch.
petunia on April 25, 2011 at 11:47 AM

I don’t know, PBHO was “hired” because white liberals were trying to atone for their own racism, so yes anything is possible.

Bishop on April 25, 2011 at 11:49 AM

Speaking as a lawyer, I will say that a situation such as Kagan’s is a more black-and-white, concrete reason for recusal as it is traditionally done.

Vyce on April 25, 2011 at 11:40 AM

Seconded.

Right, except there’s absolutely no evidence that she worked on the case when she was in the SG’s office.

crr6 on April 25, 2011 at 11:43 AM

If Kagan didn’t recuse herself from this decision, it would hint that she won’t recuse herself from any ObamaCare deliberations despite her role as Solicitor General for Obama and the possibility that she gave the administration legal advice on crafting and defending the law.

Do we have evidence of the Chinese wall that was constructed around her while she was SG, or is she relying on the Sergeant Schultz defense: “I know nothing”?

BuckeyeSam on April 25, 2011 at 11:53 AM

Do we have evidence of the Chinese wall that was constructed around her while she was SG, or is she relying on the Sergeant Schultz defense: “I know nothing”?

BuckeyeSam on April 25, 2011 at 11:53 AM

Considering how she skated into her current job after an absolutely piss-poor showing in front of the Senate judiciary committee, anything’s possible.

gryphon202 on April 25, 2011 at 11:54 AM

As opinions, by definition, are neither provable nor falsifiable, I owe you no explanation.

Well sure, but I’m just curious as to what you’re basing your opinion off of.

I’m sure you probably wouldn’t understand why I think Obama’s effort to take over health care is ipso facto “bizarre,” but the unusual circumstances of Cuccinelli’s cert petition doesn’t mean that it was crazy and unjustifiable to begin with…does it?

No. The actual arguments in the brief are bizarre, i.e. they’re not the type of arguments people generally make in serious cert petitions. To know that I’d imagine you’d need to
1) read the cert petitions, and
2) read other cert petitions to make a comparison, or
3) speak to someone with some expertise on the matter.

I don’t think you’ve done any of those things.

What was Kagan’s job? To give legal advice to the Whitehouse?

petunia on April 25, 2011 at 11:47 AM

That was a part of her job, sure. But it appears that Kaytal was the lead guy on the PPACA litigation from the start.

She was walled off from doing her job? Does that make sense to you? If that is true you have to have the ability to believe that the Whitehouse hired her to do nothing.

I’m sure she was still very busy with other things, petunia.

crr6 on April 25, 2011 at 11:55 AM

The justices turned down a request by Virginia Attorney General Ken Cuccinelli, a leading opponent of the law, to resolve questions about its constitutionality quickly. The Obama administration opposed Cuccinelli’s plea.

The decision not to fast-track this decision may be a blessing in disguise. Cuccinelli’s case only concerns one state (Virginia), while the case in which Judge Vinson struck down the entire law concerns 26 states, whose Governors / Attorneys General will be developing stronger arguments before an appellate court as time goes on.

The SCOTUS justices might want to read THOSE arguments/decisions first before ruling on a case only involving one state. If an appellate court upholds Vinson’s ruling, it could give SCOTUS a strong incentive to strike down the entire law, which would be a HUGE blow to Obama’s reelection campaign.

Steve Z on April 25, 2011 at 11:56 AM

I don’t think you’ve done any of those things.
crr6 on April 25, 2011 at 11:55 AM

In fact, I have. And to characterize the cert petition in its entirety as “bizarre” would suggest to me that Cuccineli was somehow harming his own cause in filing it. That would be what I consider “bizarre,” but if there is some other legal concept or connotation in that word that I’m not aware of, maybe I need to pack it up and attend law school.

gryphon202 on April 25, 2011 at 11:58 AM

More court news…WTF?

Clement firm drops DOMA case
The statement is silent on the reasons for the decision, but the firm faced protests at its Atlanta office and a national campaign against it. And now the House majority is looking for a new lawyer.

Rocks on April 25, 2011 at 11:06 AM

The end of the article says Clement has resigned from the firm in protest, and still wants to represent the House in the case.

If he feels that strongly, the House should still retain him. The more passionate he is for DOMA, the better for the outcome of the case.

Susanboo on April 25, 2011 at 11:59 AM

Good news, all things considered.

Also note-worthy (although unsurprising) that neither Thomas nor Kagan recused themselves. THANK GAIA, because I knew we were dead in the water if that case made it to SCOTUS.

crr6 on April 25, 2011 at 10:29 AM
FIFY

fossten on April 25, 2011 at 12:01 PM

Let’s just make sure Scalia keeps taking his Crestor and stays away from the pork sausage, pepper and onions until the case get to SCOTUS…

tommylotto on April 25, 2011 at 12:01 PM

To call Cucinelli’s cert petition “bizarre” because of the unusual nature of its arguments is nothing more than using emotionally loaded weasel words. Thank you. That is all.

gryphon202 on April 25, 2011 at 12:01 PM

Do you have a law degree?

Vyce on April 25, 2011 at 11:40 AM

No but I play a damn good law student on blogs.

– Crr6

angryed on April 25, 2011 at 11:49 AM

I don’t think she comes off that well, actually.

fossten on April 25, 2011 at 12:03 PM

***

I’m sure she was still very busy with other things, petunia.

crr6 on April 25, 2011 at 11:55 AM

Look, the Chinese Wall concept has been around for at least 25 years. In the firms I’ve worked, when we had laterals from firms on the other side of cases or transctions or law students who where splitting summers with those same kinds of firms an explicit Chinese Wall memo was distributed to all the lawyers of the firm. Indeed, they did everything to highlight it short of playing the music that used to accompany the introduction of Hop Sing in a scene of Bonanza.

When the SG’s office produces that memo and whatever record of her work as SG, I’ll believe you. That said, how anyone can believe that the SG was “walled off” on this case is beyond me.

BuckeyeSam on April 25, 2011 at 12:05 PM

When the SG’s office produces that memo and whatever record of her work as SG, I’ll believe you. That said, how anyone can believe that the SG was “walled off” on this case is beyond me.

BuckeyeSam on April 25, 2011 at 12:05 PM

I’ve tried to post a link twice to the FOIA documents, but for some reason it won’t go through. If you have a subscription to the NLJ, you can read a summary here.

crr6 on April 25, 2011 at 12:10 PM

Here’s another link to a page w/a summary of the documents, along w/a link to the documents themselves.

crr6 on April 25, 2011 at 12:15 PM

only Kagan can force herself into a recusal, and the chance to weigh in on one of the most critical Supreme Court decisions in decades is going to outweigh any qualms over conflicts of interest.

Screw the conflict of interest, how about just plain ETHICS?

Oh, right! Sorry! We’re talking about Kagan, aren’t we?

GarandFan on April 25, 2011 at 12:16 PM

Hmm…looks to me like we’re supposed to trust that Kagan stayed behind the Chinese wall because she said she did. That’s the upshot of every document I’ve managed to skim through so far.

gryphon202 on April 25, 2011 at 12:18 PM

I’m sure she was still very busy with other things, petunia.

crr6 on April 25, 2011 at 11:55 AM

But we can never know. If Kagan rules on this it will always be part of it. The ruling will never have legitimacy with the public that already finds it an affront to liberty.

They couldn’t pass it without using underhanded never used Congressional rules. And they can’t keep it without a ringer on the court. This is bad law that can’t stand without cheating.

Also, you can’t equate a spouse’s well known political views with actually being part of the law writing team.

Those two things are miles apart. So much so, that it is grasping at straws.

Taking away the political free speech rights of a spouse of a judge is a step toward politcal censorship. Which is what the left wants for all of us.

petunia on April 25, 2011 at 12:21 PM

Hmm…looks to me like we’re supposed to trust that Kagan stayed behind the Chinese wall because she said she did. That’s the upshot of every document I’ve managed to skim through so far.

gryphon202 on April 25, 2011 at 12:18 PM

Are you reading the right documents?

For starters, you can look at Kaytal’s email response to a DOJ spokesperson (Schmaler):

Schmaler: Has Elena been involved in any of that to the extent the SG’s office was consulted? Know you’ve been point but expect I’ll get this q

Kaytal: No, she has never been involved in any of it. I’ve run it for the Office, and have never discussed the issue with her one bit.

crr6 on April 25, 2011 at 12:29 PM

In fact, I have. And to characterize the cert petition in its entirety as “bizarre” would suggest to me that Cuccineli was somehow harming his own cause in filing it.

gryphon202 on April 25, 2011 at 11:58 AM

I don’t think it will affect the outcome of the case in the long run, but I do think that he decreased his (already slim) chances of getting his petition for cert granted. I think Ed’s right to a certain extent that the Justices were concerned about appearing overly political by granting cert this early, and Cuccineli’s petition was so overtly partisan and unserious that it made their decision to deny it that much easier.

crr6 on April 25, 2011 at 12:35 PM

Katyal is best known for successfully defending Salim Hamdan, Osama bin Laden’s chaffeur, before the U.S. Supreme Court in 2006. His victory forced Congress to craft an alternative plan to George W. Bush’s military commissions and the legal ramifications of Hamdan v. Rumsfeld are still resonating throughout the legal and policy world.

kingsjester on April 25, 2011 at 12:38 PM

…Cuccineli’s petition was so overtly partisan and unserious that it made their decision to deny it that much easier.

crr6 on April 25, 2011 at 12:35 PM

I’ll grant you that language sounds a bit more legally precise than “bizarre.”

gryphon202 on April 25, 2011 at 12:39 PM

But we can never know.

Sure we can. I just posted links to documents showing she was walled off from the litigation.

If Kagan rules on this it will always be part of it. The ruling will never have legitimacy with the public that already finds it an affront to liberty.

There’s a certain subset of Americans that think any ruling upholding the PPACA is an “affront to liberty,” and I don’t think Kagan’s recusal or non-recusal would expand or contract that subset in an appreciable way.

crr6 on April 25, 2011 at 12:40 PM

I’ll grant you that language sounds a bit more legally precise than “bizarre.”

gryphon202 on April 25, 2011 at 12:39 PM

Sample quote from the cert petition:

PPACA has roiled America. The party that unanimously opposed PPACA in the House of Representatives has just seen its largest electoral gains in over seventy years.

Like I said, it was partisan and unserious. If I were you I’d hope Cucinelli doesn’t become the face of the litigation for the anti-mandate side. He seems more concerned with advancing his political career than winning the case.

crr6 on April 25, 2011 at 12:42 PM

Katyal is best known for successfully defending Salim Hamdan, Osama bin Laden’s chaffeur, before the U.S. Supreme Court in 2006. His victory forced Congress to craft an alternative plan to George W. Bush’s military commissions and the legal ramifications of Hamdan v. Rumsfeld are still resonating throughout the legal and policy world.

kingsjester on April 25, 2011 at 12:38 PM

Yep, Katyal’s a brilliant guy; I’m very happy he’ll be arguing the PPACA cases in the Courts of Appeals.

His oral argument in Northwest Austin v. Holder was one of the best I’ve ever listened to.

crr6 on April 25, 2011 at 12:47 PM

crr6 on April 25, 2011 at 12:47 PM

Brilliant? In an aiding and abetting the enemy kind of way, I suppose.

kingsjester on April 25, 2011 at 12:51 PM

Legal eagles….my recollection and understanding is that cases involving a State or States can only be heard by the Supreme Court. So, this never should have gone before any Federal or District Court. What am I missing?

VBMax on April 25, 2011 at 1:07 PM

Sent last week from corporate headquarters:

April 18, 2011
MFCP 11-07

Health Care: We Each Have a Role in Managing Costs

To My Colleagues:

Like many companies, Giant Aerospace Corporation has focused substantial effort over the past several years to provide our employees outstanding health care coverage options while also working to contain the rise in health care costs. This is important to employees, who share the costs of coverage, and to our company, which must remain competitive. This has been a difficult challenge, as health care costs have continuously escalated at a rate much higher than inflation.

The enactment last year of Health Care Reform legislation further increased the cost of our plans. In the near term, the legislation requires our plans to provide coverage for eligible dependents up to age 26, and it eliminates lifetime maximum dollar limits for some benefits. While these changes are valuable to some employees, they increase the cost of health care coverage for all of us and additional provisions in the legislation may further increase costs in the next few years.

Although our benefits team has worked diligently to minimize the impact of rising health care costs, both the company and our employees will experience higher costs for health care coverage and benefits in the coming enrollment period. You will soon receive information explaining your plan options and the associated costs. You will also receive information regarding actions you and your family members can take to help manage your costs in the future. I ask for your support in taking these actions. They will not only help you and your family achieve personal health and well-being—they also can contribute to minimizing increases to the costs we all pay for health care coverage going forward.

Thanks for your support of our collective efforts to manage costs and improve the overall health of Giant Aerospace Corporation employees and families.

sig:/
Ima Realist

Chief Executive Officer and President

unclesmrgol on April 25, 2011 at 1:29 PM

Legal eagles….my recollection and understanding is that cases involving a State or States can only be heard by the Supreme Court. So, this never should have gone before any Federal or District Court. What am I missing?

VBMax on April 25, 2011 at 1:07 PM

That sort of thinking is sooooo eighteenth-century.

gryphon202 on April 25, 2011 at 1:32 PM

We’ve been told not to rely on the SC to save us from the unconstitutionality of this theft of our freedoms. This is just more proof of how serious our situation is. Why not hear this now before states have to keep spending money or not, until this is settled.

Kissmygrits on April 25, 2011 at 1:33 PM

Why not hear this now before states have to keep spending money or not, until this is settled.

Kissmygrits on April 25, 2011 at 1:33 PM

Well yeah, that would be logical, but haven’t you noticed we are now living in bizarro world?

VBMax on April 25, 2011 at 1:50 PM

That sort of thinking is sooooo eighteenth-century.
gryphon202 on April 25, 2011 at 1:32 PM

I’ll take that as a compliment.

VBMax on April 25, 2011 at 1:55 PM

Mark Levin’s “Men in Black” is required reading for understanding the SCOTUS. What we see here is the beginning of a carefully managed activist decision on the part of the SCOTUS next summer.

ultracon on April 25, 2011 at 2:27 PM

taking their time, sounds like they might be serious about overturning.

rob verdi on April 25, 2011 at 10:48 AM


I agree, i feel they are using the time to do their own research to give a very informed ruling on the issue.

lwssdd on April 25, 2011 at 4:08 PM

If any of you think this is getting overturned in the middle of the messiah’s re-election campaign, you’re in for a rude awakening. It ain’t going to happen.

xblade on April 25, 2011 at 10:43 PM