Obamacare, the Supreme Court, and Recusal

Robert Alt / April 26, 2011

Yesterday, the Supreme Court denied Virginia’s motion to bypass the appellate court and go directly to the Supreme Court in its challenge to the Obamacare litigation.

The Court’s decision not to hear the case, delivered in an order without comment, was not surprising. While the procedure exists for the Court to hear cases after a decision of the district court but before a decision of the court of appeals, it almost never does. And when I say “almost never does,” let me be clear: Playing the lottery probably has better odds.

It is black-letter law that the Supreme Court’s discretionary decision refusing to hear a case has no precedential value. All that the order signals for certain is that there were not four votes to hear the case right now. We can, however, surmise that the Court wanted to follow the ordinary course and to have the advantage of the decisions of the court(s) of appeal before they all but inevitably take the case. (more…)