Federal Judiciary

Thursday round-up

By Amanda Rice

Last week, Virginia Attorney General Kenneth Cuccinelli announced that he would seek to bypass the Fourth Circuit and seek direct review of Virginia v. Sebelius, the district court decision that struck down the health care mandate (see Lyle?s previous post for more details). On Tuesday night, Attorney General Cuccinelli formally filed a petition for a writ of certiorari in which he not only asked the the Court to review the district court decision without waiting for the appeals court to rule, but also to consolidate all of the cases that have been decided in the federal district courts and decide them together. The petition is available here. As the BLT?s Marcia Coyle reports, the petition presents ?four questions: whether the state had standing to challenge the individual mandate; whether the district court erred in finding that the mandate violated the Commerce Clause; whether the district court erred in holding that the mandate and its related penalty were severable from the rest of the act; and whether the district court erred when it denied injunctive relief.? The Volokh Conspiracy?s Orin Kerr observes that the petition reads more like ?a political document than a legal one. . . . It doesn?t make arguments usually found in serious cert. petitions, and the arguments it makes are not ones that are traditional bases for the Court granting cert.? SCOTUSblog?s Lyle Denniston reports that Virginia?s primary argument is ?that conflicting rulings by four federal judges so far have already plunged the nation into deep uncertainty over a historically important policy and legal issue.? Courthouse News Service, the Associated Press (via the Washington Post), JURIST, the Wall Street Journal, the WSJ Law Blog, Constitutional Law Prof Blog, CNN, Fox News, NBC News, ABC News? The Note Blog, and the CockleBur also have coverage. For a discussion of the rules governing cert. before judgment and the Court?s historical uses of the procedure, see SCOTUSblog?s own Kevin Russell.

Seventy-four House Democrats have signed a letter to Justice Thomas asking him to recuse from any case concerning the constitutionality of the health care initiative. The letter alleges that ?the line between [Justice Thomas?s] impartiality and [his and his] wife’s financial stake in the overturn of healthcare reform is blurred.? It argues that ?[t]he appearance of a conflict of interest merits recusal under federal law.? Slate?s David Weigel has an interview with Rep. Anthony Weiner (D-NY), the primary signatory of the letter. ABC News?s Huma Khan points out that Justice Thomas isn?t the only Justice whose potential involvement in the health care cases has been challenged. Last week, Senator Orrin Hatch (R-Utah) opined that Justice Kagan ?should recuse herself? in light of her potential involvement with the issue as the Solicitor General. Politico, The Hill, and Washington Post blogger Felicia Sonmez provide additional coverage.

Briefly (and also on health care):

• At the WSJ Capital Journal Blog, Peter Brown argues that given the possibility of additional Supreme Court vacancies and the potential for political backlash during the election season, the timing of the Court?s review of the health care initiative ?could be everything.?
• The NRO?s Robert Verbruggen explores Justice Scalia?s Commerce Clause jurisprudence in an attempt to determine how the Justice will rule on the constitutionality of the health care initiative.

Full post as published by SCOTUSBLOG on February 10, 2011 (boomark / email).