Sunday, February 13, 2011;
VIRGINIA ATTORNEY General Ken Cuccinelli II has asked the U.S. Supreme Court to take the extraordinary step of leapfrogging past federal appeals courts to decide the constitutionality of the new health-care law. In a petition filed last week, Mr. Cuccinelli argued that the law has so "roiled America" - more than half the states have asked that it be overturned - that the array of challenges should be consolidated into a single case to be decided by the high court. Without that expedited review, he said, "the states are forced to devote considerable resources now to meet the requirements of a congressional enactment that this court may find invalid." In addition, he said, "citizens and businesses are widely believed to be reducing spending and delaying hiring in response to the overhang of uncertainty" about the law's status.
Mr. Cuccinelli received some surprising support from former Pennsylvania governor Edward G. Rendell, a past chairman of the Democratic National Committee. Speaking at a forum sponsored by the Aspen Institute's Justice & Society Program, Mr. Rendell, who supports the law, said that if he were still governor he would have nonetheless signed a letter to President Obama from 28 governors backing Virginia's request. "We need a quick decision on this," Mr. Rendell said. "States literally have to put a lot of work, a lot of effort, a lot of money, into getting ready" before the bulk of the law goes into effect in 2014.
The states' desire for swiftness and certainty is understandable. But a better approach is available. Although it is a near certainty that the law's status will ultimately be determined by the high court, the justices would benefit from the considered judgment of appellate courts. Rushed cases make bad law. As Kevin Russell of ScotusBlog.com has written, the rare times that the Supreme Court has chosen to bypass the appeals courts have tended to involve requests from the federal government for speedy review; cases involving matters of presidential power, national security and international relations; or situations in which a similar case is already pending at the high court.
The better approach would be for the appeals courts to hear the cases on a speeded-up schedule, as the U.S. Court of Appeals for the 4th Circuit in Richmond has agreed to do, and to have them heard by the full appeals courts, not a randomly selected three-judge panel. That approach would give the justices the benefit of hearing from more of their appellate colleagues. Under the federal rules of appellate procedure, the parties can ask for this initial review by the full appeals court, or the appeals court judges can decide to do so on their own.
Such en banc review is reserved for cases that involve "a question of exceptional importance." It is hard to imagine a better candidate for this treatment than the litigation over the health-care law.