Politico
Supreme Court denies fast track to Virginia health care lawsuit
By Jennifer Haberkorn
April 25, 2011

The Supreme Court has denied Virginia Attorney General Ken Cuccinelli’s petition to hear Virginia’s lawsuit against the health care overhaul immediately. The order was released Monday without explanation.

The denial was expected. It’s rare for the high court to take a case without letting it go through the circuit courts first.

It’s even more unusual for the court to take a case early against the wishes of the federal government. The Department of Justice opposed the motion, arguing that the case should follow regular order.

The move means the case will proceed through the 4th Circuit Court of Appeals. Oral arguments are scheduled for May 10.

In a statement, Cuccinelli called the denial “disappointing” but “not surprising,” acknowledging that the Supreme Court rarely expedites cases.

“We asked the United States Supreme Court for expedited review of our lawsuit because Virginia and other states are already spending huge sums to implement their portions of the health care act, businesses are already making decisions about whether to cut or keep employee health plans, and citizens are in limbo until the Supreme Court rules,” Cuccinelli said. “Asking the court to expedite our lawsuit was about removing this crippling and costly uncertainty as quickly as possible. We were gratified that both Republicans and Democrats in Virginia supported the effort to expedite.”

It’s still the first in at least four suits to reach the circuit court level, ensuring that Cuccinelli’s suit could be a strong contender to be the one the Supreme Court takes up — if it takes up any at all.

“This case’s logical end point is the Supreme Court. It will simply have to make its way through the Fourth Circuit first,” Cuccinelli said.

Doug Kendall of the Constitutional Accountability Center, a left-leaning legal action center, argues that the Supreme Court should deny all future requests, too.

“Today’s entirely predictable ruling should be the first of many that denies Supreme Court review,” he said in a statement released minutes after the order was released. “Proponents of this lawsuit have tried to frame it as a hugely important constitutional challenge steamrolling to the Supreme Court. It is, in fact, a nothingburger.”

The order indicated that no justice recused himself or herself from considering whether to take up the case. The move could indicate that the justices don’t anticipate any recusals if and when the court takes up one of the health lawsuits.