The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Over at the New York Times, Linda Greenhouse has a puzzling column on the cert grant in King v. Burwell. Greenhouse condemns the cert grant in Burwell as "a naked power grab by conservative justices" because they took the case when there was no circuit split and no emergency. According to Greenhouse, the Court's decision to hear the case absent a split has had an enormous impact on her view of the Supreme Court as an institution:
In decades of court-watching, I have struggled—sometimes it has seemed against all odds—to maintain the belief that the Supreme Court really is a court and not just a collection of politicians in robes. This past week, I've found myself struggling against the impulse to say two words: I surrender.
I think there are two ways to read Greenhouse's column. First, perhaps it just reflects Greenhouse's anguish over the likelihood that the Supreme Court will reverse on the merits. The cert grant absent a split suggests that is likely, and perhaps her column is just a way of expressing anguish over an expected future 5-4 decision along ideological lines. If that's what the column signals, then I think I understand.
If we take Greenhouse's argument at face value, on the other hand, I don't see how the cert grant in this one case is supposed to have such tremendous importance. First, the decision to grant is just decision to hear a case, not a merits opinion. We can speculate about who voted to granted cert and why. But it's just that: speculation. We don't actually know.
Second, I think there was a good reason to grant in King absent a split. The stakes of the case are enormous, and the DC Circuit panel decision showed that at least two very respected judges saw it differently. Given that the issue can be litigated in any circuit, and future uncertainty on the issue is very troublesome, I don't see it as particularly ominous that the Court would want to step in now. (For what it's worth, I have no idea what the right answer is in the case: I haven't worked through the materials to have a sense of which side is more persuasive. But at least from the outside, it seems like a serious question.)
Finally, I find Greenhouse's stated rationale puzzling because there are instances of the Court granting cert absent a split or an emergency when Greenhouse apparently hasn't found the grant at all objectionable. Consider the cert petition in Lawrence v. Texas, which did not allege a split or claim an emergency. The Court granted cert even though the petition did not meet the usual criteria for cert. When Greenhouse has written about Lawrence, she hasn't lamented the cert grant as a "power grab" (naked or otherwise) that ruined her faith in the Supreme Court. Instead she has celebrated what a wonderful moment it was when the Court handed down its opinion.