Justice Ruth Bader Ginsburg, perhaps not aware that she was taking a firm position on an issue not yet before the Supreme Court, has suggested that the attempt to appeal immediately in a constitutional challenge to the new health reform law will fail.  It was not the typically cautious Ginsburg who spoke out on the subject before an audience of students at George Washington University in Washington last week.

Although a story in the University’s student newspaper did not provide the full context of the Justice’s remarks, it quoted her as saying without qualification on Thursday evening that the health care issue would have to reach the Court through “the ordinary route” — that is, after decisions on it by the federal appeals courts.

She went on to say, according to the report: “The court itself is a reactive institution. We don’t decide, ‘We better get this or that case sooner rather than later.’ ‘”  Further, the story said that, while some cases like those involving disclosure of the secret Pentagon Papers do get swift review, “Ginsburg said the court benefits from reading opinions from lower courts when it decides whether or not to hear an appeal.  ‘We have a range of views before us and can make a better informed decision.’ ”

The state of Virginia announced last week that it would, in fact, ask the Justices not to follow “the ordinary route” on the health care law.  Although the state’s partially successful challenge is now pending in the Fourth Circuit Court in Richmond, the state plans to ask the Justices to bypass that Court, arguing that  the issue is too important to delay further a review by the Supreme Court.

Virginia, however, has not yet filed its papers at the Supreme Court, so it is conceivable that Justice Ginsburg was not aware that she would soon be asked to review those papers and decide on whether this case is an exception to the usual rule.  The state, in its filing, will lay out a series of arguments to try to persuade at least four Justices that review of the controversy should not be delayed.  The Court will not act formally on that until after it receives the expected opposition of the Obama Administration.

It is also possible Ginsburg was making a more generalized statement, reflecting what is, in fact, the more common or ordinary practice.

But the question put to her, at least as recounted by the college newspaper, appeared to have left little doubt that she was being asked about this particular legislation.

While the Justices, including Ginsburg, have become much more active in out-of-Court appearances in recent years, they do not often comment definitively on matters not yet before the Court.   On the issue of review of a case before a federal appeals court acts, it is clear that the Court’s rules do permit that maneuver to be attempted.  It is within the Justices’ discretion to allow or not allow it.

(Thanks to Howard Bashman of How Appealing blog for the tip to this story.)

Posted in Cases in the Pipeline, Featured, Health Care

Recommended Citation: Lyle Denniston, Ginsburg on health care timing, SCOTUSblog (Feb. 8, 2011, 7:34 AM), http://www.scotusblog.com/2011/02/ginsburg-on-health-care-timing/