Virginia's plans to ask the Court to immediately review the constitutionality of the federal health-care overhaul legislation, as well as Justice Ginsburg's recent statements suggesting that such a request is unlikely to succeed, are bringing attention to an obscure Supreme Court procedure called "certiorari before judgment." For those wanting to handicap Virginia's chances at skipping over the court of appeals, we thought it might be helpful to examine the rules governing such requests and the Court's past exercise of that power.
Under 28 U.S.C. § 2101(e), the Supreme Court has jurisdiction to accept a petition for certiorari "at any time before judgment," once a case has been docketed in the court of appeals. Supreme Court Rule 11, however, warns that such petitions will be granted "only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court."
The Court has been true to its word, granting cert. before judgment in only a handful of cases over the past seventy-five years. A few generalities can be made:
First, in the majority of cases, the Court has granted cert. before judgment so that it can hear a case along with another that it has already decided to review through the normal process. Two recent cases are examples: in Gratz v. Bollinger (2003), the Court granted cert. before judgment in a case challenging the constitutionality of the University of Michigan's undergraduate admissions program so that it could hear the case at the same time as a challenge to the law school's admissions program (which had previously been reviewed by the Sixth Circuit). Likewise, in United States v. Fanfan, the Court granted cert. before judgment to take the case as a companion to United States v. Booker (2005), another case also challenging the constitutionality of the federal sentencing guidelines.
These examples obviously do not provide Virginia with support for its attempt to have the Court review its constitutional challenge to the federal health-care law without waiting for the Fourth Circuit to weigh in.
Second, among the remaining examples, a good number are cases in which the federal government sought cert. before judgment: Mistretta v. United States (1989), United States v. Nixon (1974), McCulloch v. Sociedad Nacional (1963), Wilson v. Girard (1957), and Kinsella v. Krueger (1956). This suggests that Virginia's chances of obtaining cert. before judgment would increase considerably if the United States were to acquiesce to the petition and tell the Court that the case needs to be resolved immediately. Conversely, cert. before judgment over the objection of the federal government is exceedingly rare (in fact, I'm not aware of any recent example).
Third, the Court has tended to grant certiorari in cases implicating international relations and presidential authority, particularly in the context of the president's war powers. Thus, the Court granted early review in Dames & Moore v. Regan (1981), to resolve a challenge to part of the deal that ended the Iranian hostage crisis. In McCulloch v. Sociedad Nacional, the Court considered application of U.S. labor laws to foreign ships in American waters. And in Wilson v. Girard, the Court decided whether the military could turn a U.S. soldier over to Japan for prosecution for a crime committed against a Japanese citizen.
The balance between individual liberty and wartime powers was also the subject of cert. before judgment in Kinsella v. Krueger (whether civilian spouse of U.S. service member can be tried by court martial for murdering her husband) and Ex parte Quirin (1942) (challenging the President's power to try accused German saboteurs by military tribunal during World War II).
The President's authority to seize control of national industries in a time of war was also given expedited review in Youngstown Sheet & Tube Co. v. Sawyer (1952) (President's attempt to seize control of steel companies during Korean war), and United States v. United Mine Workers (1947) (seizure of coal mines at end of World War II).
Outside of wartime, the Court intervened to resolve a dispute regarding the scope of presidential power and privilege in United States v. Nixon, the Nixon tapes case.
The challenge to the federal health-care law does not easily fit into any of the broad categories of international relations, presidential authority, or wartime conflicts. Instead, Virginia's argument will have to draw on the fact that these cases also tended to involve issues of broad national importance in circumstances in which prompt and final resolution was seen as critical to the functioning of the government or the economy. Thus, the threat to the uniform operation of the federal criminal sentencing system undoubtedly played a significant role in the Court's expedited review of challenges to the sentencing guidelines in Mistretta and Fanfan. Likewise, Virginia will likely attempt to draw comparisons between the federal health-care law's substantial effects on a critical component of the national economy and the government's attempts to seize control over sectors of the economy in the steel and coal seizure cases.
Whether the State can convince the Court that the resolution of that question simply cannot wait for the usual appellate process remains to be seen.