As Paul discussed at the time, the DC Circuit Court’s Halbig ruling striking down Obamacare’s state subsidies would be unlikely to survive an en banc rehearing with all of the new judges that Harry Reid enabled Obama to appoint. And the 4th Circuit upheld the state subsidies in a separate case.
But this afternoon the Supreme Court announced that it won’t wait for the DC Circuit’s rehearing, and will take up an appeal of the 4th Circuit case, King v. Burwell. The Supreme Court didn’t have to do this. And if the DC Circuit does reverse Halbig, the Supremes could have then voted to avoid hearing further appeal. The fact that they have rather swiftly granted cert for King v. Burwell suggests that at least four justices may be annoyed with the chicanery of the DC Circuit. I’m not versed enough in the fine points of either case or the procedural merits of conflicting appeals to know whether the Supreme Court may have just pre-empted the DC Circuit, but it would be nice.
The New York Times is clearly worried:
The Supreme Court often steps in when federal appeals courts have disagreed. But the split between the two courts was wiped out in September when the full District of Columbia Circuit vacated the July ruling and set the case for argument in December.
It takes only four votes to add a case to the Supreme Court’s docket. They may have come from the four members of the court who were ready in 2012 to strike down the Affordable Care Act: Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. Once again, it seems, the fate of the law may rest with Chief Justice John G. Roberts Jr.