The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On December 18, 2018, the Fifth Circuit decided Texas v. United States, the constitutional challenge to Obamacare. (A revised opinion was issued on December 20.) At the time, I expected the House of Representatives, and the Blue States, would file their cert petitions within a manner of days. After oral argument, the writing was on the wall. The documents could have been prepared in advance. If they hustled Texas's response would have been due by January 20–just in time for the pivotal January 24 conference. If Texas's request for an extension was denied, then the case could have been heard this term, without the need to grant a motion to expedite. Critically, four votes are required for cert; five votes are required to expedite.
But the House and California did not file right away. They waited more than two weeks. Today, both parties filed cert petitions (House and California). To be sure, their pleadings were filed at a rapid pace; but not super rapid pace. We know from the travel ban litigation that elite law firms can prepare quality pleadings in a very short time.
Under the Court's normal rules of proceeding, it will be virtually impossible for the case to be heard this term. Generally, petitions granted at the end of January will be argued at the end of April. Petitions granted in February are usually heard the following term. The Court seldom grants May sittings. Based on my count, over the past quarter-century, there have only been three May cases.
As a result, both parties filed motions to expedite (House and California). The House offered two proposed briefing schedules. (To further the feeling of Groundhog Day, former Solicitor General Donald Verrilli was counsel for the brief).
Under the first option, the respondents brief would be due in 18 days:
- January 15, 2020—Amici supporting cert
- January 21, 2020—Respondent brief
- January 21, 2020—Petition distributed
- January 23, 2020—House files reply brief.
- January 24, 2020—Court considers petition at conference
- February 24, 2020—Petitioner's opening brief due
- March 23, 2020—Respondents' brief due
- April 17, 2020—Petitioner's reply brief due
- April 27, 28, or 29, 2020—Oral argument
Under the second option, the respondents brief would be due in 31 days:
- January 17, 2020—Amici supporting cert
- February 3, 2020—Respondent brief
- February 5, 2020—Petition distributed
- February 12, 2020—House files reply brief.
- February 21, 2020—Court considers petition at conference
- March 20, 2020—Petitioner's opening brief due
- April 20, 2020—Respondents' brief due
- May 8, 2020—Petitioner's reply brief due May 2020 Oral argument
Practically speaking, either the Chief Justice or Justice Kavanaugh will be lobbied to provide a "courtesy fifth." If they decline to provide such a vote, this petition will be heard next term, if at all. Recall, the Fifth Circuit's decision did not issue any final ruling. Moreover, a stay is in place. The Court may simply wait for a later juncture to consider the legal issues. Issues of standing, the constitutionality of the mandate, and the proper rule for the severability analysis, can be heard at any time.