Supreme Court To Take First Look At Health Care Law Challenges

Lyle Denniston reports that the Supreme Court is set to take its first look at the challenges to the Affordable Care Act in a private conference on November 10th:

The Supreme Court will take its first look at the challenges to the new federal health care law at its Conference on Thursday, November 10.  Five of the six pending petitions (the sixth is not ready yet) were distributed to the Justices’ chambers on Wednesday, for consideration at that private session.  Although a grant of review is not assured, that is highly likely, since all sides agree that the Court should take on the controversy, and the constitutionality of a key provision of the new law has been decided differently by federal appeals courts.

The first decision the Court will face in this historic dispute is whether to grant any of the petitions  or any of the issues.   The Justices have the discretion to grant all, some, or none, since none reached the Court as a mandatory appeal.

Four of the petitions were filed by challengers, and together they raise all of the key issues the Justices may want to consider as they examine the massive Affordable Care Act passed by Congress at the urging of President Obama.  The fifth petition is the federal government’s. defending the constitutionality of the insurance-purchase mandate that is crucial to the overall law’s functioning.  The government also is urging the Court to confine its review to only a few vital questions.

The sixth pending petition involves an attempt by the state of Virginia to get back into the constitutional fray; the Fourth Circuit Court ruled that Virginia did not have a legal right to bring its court challenge, since it could not show that the state would suffer any harm from the new insurance mandate.   That petition will be ready only when the federal government files a response, which currently is due on Nov. 3.  The government has not hurried its filing of a response to Virginia’s filing, as it did in most of the others.

It will be up to the Justices themselves to decide (a) which petitions, if not all of the five, should be reviewed, (b) which issues it is ready to decide, (c) how to line up the lawyers on each side of those issues, and (d) how much time to allow for oral argument.   Because the five are now ready for the Court’s consideration, a grant of review soon would assure that they could be heard and decided during the current Term of the Court, which is expected to run until near the end of June.  An oral argument in late March appears probable.

Here are the five petitions that the Justices will consider Nov. 10, the issues each seeks to raise, the lower court involved, and the petitioners:

It may be a week, or more, before we find out what the Court has decided to do. Oral argument in March 2012, of course, would mean that a decision gets handed down sometime at the end of the current term in June 2012. Information about all the cases to be considered can be found at the links.

FILED UNDER: Healthcare Policy, Law and the Courts, US Politics, ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. Tsar Nicholas says:

    Well, we know they’ll take up the cases. We know ultimately it’ll be a 5-4 decision. We know Kennedy will cast the deciding vote. We just don’t know whether it’ll be yea or nay. We also know the reaction to the decision by whichever side of the chattering classes feels aggrieved will be off-the-rails irrational and stupefied. Ergo to my way of thinking this will be the most engaging SCOTUS theatre since Bush v. Gore. I literally can’t wait for this ruling.

  2. Hey Norm says:

    “…the most engaging SCOTUS theatre since Bush v. Gore…”

    which of course even SCOTUS admitted was BS and was not to be ever used as precedent.
    Nonetheless…this court is bought and paid for…the result is pre-determined. Scalia will have to reverse himself on every ruling he has made regarding the Commerce Claus…but money talks.

  3. Pug says:

    @Tsar Nicholas:

    Agreed it will be 5-4, but we know the outcome. Kennedy goes with Thomas, Scalia, Roberts and Alito.

  4. Tlaloc says:

    if the Scotus kills the mandate but keeps the rest then Obama will have accidentally given us the single payer system he fought so hard against.

    I love irony, particularly when it significantly extends my life expectancy.