Monday, October 27, 2014

Not a Difficult Decision: Why the Court Shouldn’t Grant Cert. in King v. Burwell

Guest Blogger

Brianne Gorod

On October 31, the Supreme Court will consider whether to grant cert. in King v. Burwell, a case out of the Fourth Circuit Court of Appeals that is part of the latest round of challenges to the Affordable Care Act.  People following these challenges will no doubt be waiting for the Court’s decision with bated breath, but there shouldn’t be much suspense.  If the Court follows its usual practices and procedures, it won’t grant review in King

As Supreme Court practitioners all know, the most important factor the Court considers in deciding to hear a case is whether there’s a division of authority among the courts below.  As then-Judge Roberts explained at his confirmation hearing, “The job of the Supreme Court is to ensure the uniformity and consistency of Federal law . . . .”  This principle is expressly reflected in Supreme Court Rule 10, which identifies the factors the Court considers when deciding whether to grant cert.  The first factor Rule 10 lists is whether “a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter.” 

Indeed, the justices themselves have repeatedly recognized the important role that circuit splits play in their decisions about cert.  A few years ago, Justice Scalia told the Senate Judiciary Committee that his colleagues on the Court “all have standards:  Is there a circuit conflict?  Is this a significant issue on which the lower courts are divided?”  He stated that “if there’s no disagreement below, we don’t get involved.”  And much more recently, Justice Ginsburg pointed to the same factor in explaining the Court’s decision not to hear any of the same-sex marriage cases.  As she explained, “[W]hen there’s no disagreement among the courts of appeals we don’t step in. The major job of the court is to keep the law of the United States more or less uniform.”

And there is no disagreement here.  Yes, on the same day in July that the Fourth Circuit in King upheld the IRS rule confirming that tax credits and subsidies should be available to individuals who purchase insurance on federally-facilitated Exchanges, the D.C. Circuit came out the other way in a 2-1 decision in Halbig v. Burwell.  But the D.C. Circuit Court of Appeals subsequently decided to rehear Halbig v. Burwell en banc, vacating the panel’s judgment, and thus eliminating any division among the circuits.  The law’s challengers continue to argue that there’s a circuit split because the order granting en banc review only vacated the panel’s judgment, not its opinion, but that’s a distinction without a difference.  What matters for present purposes is that there’s no division in the way the law is being applied in different parts of the country, and so no need for the Supreme Court to intervene now.  Indeed, the full D.C. Circuit could well end up agreeing with the Fourth Circuit, and thus there will be no need for the Court to intervene at all (assuming subsequent courts of appeals also agree). 

And that is why if the Court follows its normal practice, it will either deny the petition in King or wait to decide whether to grant cert. until the full D.C. Circuit issues its decision.  Indeed, an additional reason the Court often waits for circuit splits before granting cert. is to let issues percolate in the lower courts and to get the wisdom of lower court judges on contentious legal issues before the Court steps in.  Here, waiting would not only give the Court the benefit of hearing what the full D.C. Circuit has to say on the issue, but possibly the Tenth Circuit, as well, which is expediting its review of another case that raises the same issue. 

To be sure, there is one additional Rule 10 factor that could play a role in the Court’s cert. grant determination in King: whether “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.”  But it would be astonishing for the Court to decide that the question posed in King rises to this level given the Court’s recent decision that the questions posed by the same-sex marriage cases did not.  The marriage cases posed major constitutional questions affecting the rights of millions of Americans.  In contrast, the legal question King poses is a narrow and straightforward question of statutory interpretation.  Further, the marriage cases involved dozens of state laws and constitutional provisions being set aside on federal grounds.  Again, in contrast, there is no judgment from a court of appeals setting aside the federal regulation at issue in King.  Thus, whatever the merits of the Court’s decision not to hear the marriage cases, it makes far less sense for the Court to hear King. 

When the Supreme Court meets on Friday, the Justices will no doubt have a lot of difficult decisions to make about which cases merit the Court’s attention.  But the decision about whether to hear King shouldn’t be one of them.

Brianne Gorod is appellate counsel at Constitutional Accountability Center. She served as an attorney-advisor in the Office of Legal Counsel and law clerk to Justice Stephen Breyer. You can reach her by e-mail at Brianne at

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