Earlier today the US Supreme Court unanimously declined to hear a challenge to the Affordable Care Act. The significant takeaway on this actually had to do more with what wasn't than what was. Elena Kagan did not recuse herself, sending a clear signal that she will not be absent from any challenges to the law.
Steve Baldwin, a former California state legislator and an advocate of limited government, and the Pacific Legal Institute challenged Judge Sabraw’s decision both in the Ninth Circuit (where the case remains pending) and in a petition to the Supreme Court, asking the Justices to rule without waiting for the Circuit Court. They argued that the Justices should step in now because federal District judges have reached conflicting rulings on whether lawsuits against the law are premature, or can go forward.
The Supreme Court’s reaction to the petition had been watched closely, not because it was likely to be granted (the Court seldom hears cases to rule on conflicting rulings in federal District Courts) but as an early indicator of whether Justice Kagan would participate. As the former U.S. Solicitor General, she has regularly taken herself out of cases on which she had played any role in that position. Her failure to step out of the Baldwin case seemed to indicate that she had had no part in the government’s defense of the new law in lower courts. (The Baldwin petition is discussed at length in this prior post. The Administration waived its right to respond to the petition, and the Court did not ask for a response — usually an indication that a case will be denied review.)
The refusal of the justices to rule on the question shouldn't be viewed as any indicator of whether or how they will rule in the future. The attorney in this case leapfrogged the usual Circuit Court review when he filed his petition. The justices' refusal to step in at this point simply lets Baldwin know they need to go through the usual channels.
Stay tuned. There are more substantive challenges in the pipeline.
