Linda Greenhouse writes a partisan op-ed slamming the Supreme Court for taking the King v. Burwell case, implying that the Court does not take cases absent a circuit split:
Further, the case the court agreed to decide, King v. Burwell, doesn’t fit the normal criterion for Supreme Court review. There is no conflict among the federal appellate circuits. (Remember that just a month ago, the absence of a circuit conflict led the justices to decline to hear seven same-sex marriage cases?) In the King case, a three-judge panel of the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., unanimously upheld the government’s position that the tax subsidy is available to those who buy insurance on the federally run exchanges that are now in operation in 36 states.
A panel of the United States Court of Appeals for the District of Columbia Circuit ruled 2-to-1 the other way, accepting the plaintiffs’ argument that the language of the statute limits the tax subsidies to those who buy insurance through the state exchanges, which only 14 states have chosen to set up. The full appeals court quickly vacated the panel’s judgment and agreed to rehear the case. The new argument was set for next month, and the briefs were already filed. The absence of a circuit conflict and an imminent rehearing by the country’s most important court of appeals would, in the past, have led the Supreme Court to refrain from getting involved.
So no, this isn’t Bush v. Gore. This is a naked power grab by conservative justices who two years ago just missed killing the Affordable Care Act in its cradle, before it fully took effect. When the court agreed to hear the first case, there actually was a conflict in the circuits on the constitutionality of the individual insurance mandate. So the Supreme Court’s grant of review was not only unexceptional but necessary: a neutral act. The popular belief then that the court’s intervention indicated hostility to the law was, at the least, premature.
Not so this time. There is simply no way to describe what the court did last Friday as a neutral act. Now that the justices have blown their own cover . . .
And she goes on like that.
But the Supreme Court’s rules for granting certiorari don’t require a circuit split. Rule 10 of the court’s (non-binding and non-exclusive) rules says that the court may take a case when “a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court.”
I can think of few cases that are more clearly “an important question of federal law.” And the fact is, if the lefties had a majority on the Supreme Court, and if the only case out there ruled against subsidies for federally established exchanges, Greenhouse would scream bloody murder if they denied certiorari.
This is an important case. It affects millions of Americans. That’s why you didn’t see me complaining when the D.C. Circuit granted an en banc hearing (which, by the way, has been put on hold now that the Supremes have taken the case). The federal courts are there precisely to rule on cases with important implications like this — and to do so as expeditiously as possible.
It’s cute to watch Greenhouse pretend to be horrified by the supposedly partisan nature of this action. It reveals (as all her writing always has) her own partisan nature.
This is just further evidence that conservatives are going to win. She does her best to suck up to John Roberts in the piece, as if she believes he deeply cares about her opinion, but deep down she knows a reversal is likely.
When Linda Greenhouse is unhappy about a legal issue, it’s good news, friends.