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The Supreme Court courtroom. (Photo: John Marino/Flickr)

How the Supremes Pick Their Cases—and Why Obamacare Is Safe for Now

• July 24, 2014 • 10:58 AM

The Supreme Court courtroom. (Photo: John Marino/Flickr)

The opponents of Obamacare who went one for two in circuit court rulings earlier this week are unlikely to see their cases reach the Supreme Court.

Although I couldn’t tell you whether I learned it for cocktail parties or lectures, one of the first topics I seized on upon entering law school was, in the lingo of Schoolhouse Rock!, how a lawsuit becomes a Supreme Court case.

Getting four Justices to vote to hear a case had to be a more legible, more routinized process than pundits and politicos made it seem, I thought. Surely experts had answers. If you just pegged the right legal and political variables, or spoke to enough constitutional law scholars and former Supreme Court clerks, you’d be able to make fairly accurate predictions. But the answer at which I arrived following careful study, like most answers in law school, was, “It depends.”

MOST SUPREME COURT CASES come up through the lower courts. Whichever party loses in a state supreme court or federal court of appeals can petition for certiorari, or consideration from the Supreme Court. (“Certiorari,” by the way, is the present passive infinitive of “certioro, certiorare” meaning “to inform, apprise, show,” according to Wikipedia.) Occasionally, parties to a case in the court of appeals petition the Supreme Court to hear their case even before the appeals court rules, skipping a step—as was the case last year with gay rights activist Edie Windsor, whose case toppled the Defense of Marriage Act. She pleaded with the Court to take her case early because of her age and health. If she’d died before the Court ruled, her case would have died along with her.

Although the Supreme Court isn’t above hearing cases surrounding legislative semantics, it must be less inclined to do so when there’s no conflict among circuit courts.

In rare cases, the Supreme Court has original jurisdiction—making 1 1st Street NE the first and only stop. That happens when two or more states are suing one another—there’s one of those coming up next term, among Kansas, Nebraska, and Colorado over the Republican River—or where a case involves ambassadors or public ministers.

But how do the Justices choose which of the many petitions they receive each year to grant? In 1880, the Court received just 417 petitions, although it had 1,212 cases on its docket. Not until 1933 did the total number of petitions break 1,000. (The number hit 5,000 in 1989.) Now, the Court receives 10,000 petitions per year.

Even as the number of petitions for certiorari the Justices receive continues to grow, they’ve become ever more selective about hearing oral arguments. That number peaked at 184 per year, in 1981 and 1983. Today, the Supreme Court hears just 75 to 80 cases each term, although it reviews and decides many cases in writing, without hearing arguments; usually that number hovers in the low triple digits. The highest number of cases decided without argument in recent history is 826, in 2004.

The “Rules of the Supreme Court of the United States” emphasize that the Court has complete judicial discretion; it can choose to hear any petitions from federal appeals courts and state supreme courts that involve issues of federal law or the Constitution. But within that discretion some reasons to hear a case are officially more compelling than others.

Most prominent among these reasons listed in Rule 10 is conflict among circuit courts (a circuit split), or between a federal appeals court and a state supreme court—when “a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter” or “has decided an important federal question in a way that conflicts with” a state supreme court. The Supremes may also take cases from state supreme courts that attempt to make a pronouncement on a federal law or constitutional issue, rule on something the Supreme Court has yet to settle, or disregard Court precedent.

The Justices may also grant certiorari, of course, if the issue in question is of particular national importance—or if a court “has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court’s supervisory power.” It rarely happens, though, that an appeals court goes rogue without also contradicting other courts of appeal.

THE TWO TUESDAY OBAMACARE cases from circuit courts aren’t likely to make the cut at the Court. While the opponents of Obamacare who lost in the Fourth Circuit case plan to appeal directly to the Supreme Court, the D.C. Circuit losers—the pro-ACA contingent—announced their intent to petition for an en banc re-hearing just hours after the ruling was released. Nina Totenberg, among others, suggests consensus is that an en banc re-hearing is likely.

If a re-hearing is granted in the D.C. Circuit, the adverse ruling will be vacated immediately, eliminating the circuit split—and thus the best reason for the Supreme Court to take the case in the near future. Moreover, it’s most likely that an en banc review will see the D.C. Circuit fall in line with the Fourth Circuit. Of the 13 eligible judges—11 active judges plus the two senior status judges who were part of the original three-judge panel—eight were appointed by Democrats.

That would leave anti-Obamacare agitators with only the relative importance of the legal question they’ve raised as a basis for arguing that the Supreme Court should take the case. But the question here is a trifling one, albeit with potentially enormous consequences for millions of Americans across 36 states, those that have federally run state-level health exchanges because they refused to set up their own health insurance marketplaces.

Conservatives argue that because a sub-section of the statute providing for premium subsidies neglects to mention these exchanges, only individuals participating in state-run state-level exchanges should be eligible to receive subsidies. And if they were to prevail, it would be the end of Obamacare—individual premiums would be four times as much as they are now. Those behind and in favor of the ACA point out that it’s clear from the remainder of the statute that Congress didn’t intend to distinguish between state-run and federally run exchanges.

Although the Supreme Court isn’t above hearing cases surrounding legislative semantics, it must be less inclined to do so when there’s no conflict among circuit courts—and where the faction who’d favor reversing the decision below isn’t assured of the votes to do so.

Justice John Roberts voted against the conservative bloc in the 2012 Obamacare case, to uphold the legislation. If he doesn’t vote in favor of granting certiorari in these cases, the conservative faction may take that as a signal he’d vote to uphold Obamacare again and follow his lead. Justices Antonin Scalia, Clarence Thomas, and Samuel Alito—perhaps joined by Anthony Kennedy—would hardly invite a second major Obamacare battle to the Supreme Court knowing that they’d likely come up one vote shy of gutting Obamacare once again.

Rebecca Buckwalter-Poza
Rebecca Buckwalter-Poza attended Harvard College and Yale Law School. She has written on law and politics for the Nation, the Atlantic, Politico, the Daily Beast, and CNN, and co-authored James Carville’s 40 More Years. Follow her on Twitter @rpbp.

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