Justices Reject Request for Fast Health Law Ruling

Published: April 25, 2011 - New York Times

WASHINGTON — The Supreme Court on Monday turned back an unusual request from Virginia to put the state’s challenge to the new federal health care law on a fast track. The court’s one-line order offered no reasoning, and there were no noted dissenting votes.

Nor was there any indication that any justices had disqualified themselves from the case. The court’s practice is to note such recusals, and it now appears almost certain that all nine justices will hear cases challenging the law when they reach the court in the ordinary course, probably in the term that starts in October.

Federal trial courts around the nation have issued varying decisions about the constitutionality of a key provision of the law, the Patient Protection and Affordable Care Act. Some judges have upheld the provision, which mandates the purchase of health insurance in some circumstances, while others have ruled that the requirement exceeds the scope of Congressional power authorized by the Constitution.

At least three appeals courts will hear appeals from those decisions in coming months. The Supreme Court’s usual practice is to consider cases only after an appeals court has ruled.

In a filing in February, Attorney General Kenneth T. Cuccinelli II of Virginia argued that an exception was warranted in his state’s challenge to the law given the law’s importance, complexity and the likelihood that the final decision on its constitutionality will be made by the Supreme Court.

“This case is of imperative national importance requiring immediate determination in this court,” Mr. Cuccinelli wrote.

In response, the federal government acknowledged the momentous issues involved. “The constitutionality of the minimum coverage provision is undoubtedly an issue of great public importance,” Acting Solicitor General Neal K. Katyal wrote in March.

But he urged the justices to let the issues in the case, Virginia v. Sebelius, No. 10-1014, reach them in an orderly way. “Especially given the court of appeals’s imminent consideration of this case,” Mr. Katyal wrote, “there is no basis for short-circuiting the normal course of appellate review.”

The Supreme Court only rarely hears expedited appeals of the sort Mr. Cuccinelli sought, and so Monday’s order is perhaps more notable for seeming to settle the question of Justice Elena Kagan’s participation in the case. She joined the court in August, after serving about a year as United States solicitor general, the federal government’s top appellate lawyer.

Last summer, while under consideration for a seat on the court, Ms. Kagan wrote that she had had almost nothing to do with the administration’s plans to defend the health care law against legal challenges.

“I attended at least one meeting where the existence of the litigation was briefly mentioned,” she wrote, “but none where any substantive discussion of the litigation occurred.”

Documents released last month under the Freedom of Information Act to CNS News, a conservative Web site, appear to confirm that she took pains to avoid involvement in meetings concerning challenges to the health case law. On March 21, 2010, for instance, about six weeks before her nomination to the Supreme Court, Mr. Katyal, then her deputy, sent Ms. Kagan an e-mail about a meeting the next day.

“This is litigation of singular importance,” Mr. Katyal wrote. “I think you should go, no?”

Two minutes later, Ms. Kagan responded with a question: “What’s your phone number?”