Legal Commentary

Virginia Files Its Cert Petition in the Mandate Case

By Orin Kerr

The petition is here. The petition asks the Supreme Court to grant cert and then expand the cert grant to include all of the other mandate cases that have been adjudicated by a district court. Reading over the petition, it strikes me as more of a political document than a legal one. Or at the very least, it is a unique petition. 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 (e.g., ?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.? or, ?There is a palpable consensus in this country that the question of PPACA?s constitutionality must be and will be decided in this Court.?) I don?t think anyone who follows the Supreme Court thinks there is a realistic chance the Supreme Court would grant a petition on the mandate case before any circuit courts have even addressed the issue. But even so, this petition doesn?t strike me as putting one?s best foot forward.

Thanks to the CockleBur for the link.

UPDATE: While I?m on the mandate, the National Review has this essay trying to figure out how Justice Scalia would vote on the mandate if/when it reaches the Supreme Court. It quotes a former Scalia clerk, Brian Fitzpatrick, as finding it very hard to predict. I tend to agree with Brian: I think Scalia?s many writings on federalism point in different directions here, and that his vote is hard to know.

ANOTHER UPDATE: Reader Elliot asks:

What does Virginia gain or lose by submitting the petition? Has their case been damaged/enhanced? Has submission of the petition reduced/increased the probability of eventually prevailing at the SC? How?

I gather there is political gain by filing, in that this creates a sense of action while the appeals are otherwise just pending at the circuit court level. As a question of Supreme Court litigation tactics, though, I think this hurts Virginia a little bit. Between filing at such an unusual time; filing in a case that you actually won; and not filling the most polished legal brief that could have been filed, Virginia risks not looking as serious as it should want to look to the Justices. Virginia?s hope is to get the Supreme Court to strike down the most important piece of federal legislation in years: You don?t want to come into court for the first time with a brief that reads at times more like a press release than a cert petition. In my view, the better approach to the petition would have been to focus much more on the reliance interests of the state in having to get ready for complying with the legislation. That?s my sense, at least.

Full post as published by The Volokh Conspiracy on February 09, 2011 (boomark / email).