Yes, Virginia, there is a Direct SCOTUS Appeal Clause

Posted by on April 21, 2011 4:56 pm
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Categories: Patriot Dispatches

When the Chief Justice of the United States convenes his regular Friday Conference tomorrow, four elves (or Santa and three elves) are required to determine if Ken Cuccinell’s direct appeal of ObamaCare is naughty or nice.

Promoted by Pilgrim because Friday’s SCOTUS conference needs watching.

Federal district courts in Virginia and Florida found ObamaCare’s mandate that citizens’ wallets jump when AFLAC ducks quack, to be so much excess, and unconstitutional, water on our American’ backs.

Moreover, the whole of President Barack Obama’s signature legislative achievement melted under the latter’s constitutional sun shine, albeit without an injunction. As a result, the tentacles of socialized medicine were unleashed to poison private insurance pools that could make the legal issues moot if too many claims of 25-year old “children” with pre-existing cancerous conditions have to be paid before non-highest courts weigh in.

Meanwhile, similarly situated courts in other states have upheld former Speaker Nancy Pelosi’s thrice-rejected 2009 Christmas Eve lump of coal, thus inspiring Cuccinelli, Virginia’s Attorney General, to present the dirty stocking directly to our judiciary’s northernmost pole before being laundered in the circuits:

The Virginia petition has been re-listed for consideration at this Friday’s Conference, according to the Court’s docket.


The Supreme Court on Monday left unresolved, at least for the moment, the fate of the state of Virginia’s attempt to get the Justices to rule on a very fast track the broad challenge to the constitutionality of a key feature of the new federal health care law.  The plea by the state to take up the validity of the new mandate to buy health insurance, before any federal appeals court rules on it, was before the Justices at their Conference last Friday, but no order on it came out with the Monday list.  The case is Virginia v. Sebelius (10-1014).

Bush v. Gore, Roe v Wade and the Scourge of ObamaCare

Rightfully, courts do not issue advisory opinions. The third branch is passive, waiting for cases and controversies to ripen before they weigh in on the proclivities of the non-robed occupants of the legislative and executive.  The Nine can’t hear every constitutional case for reasons biological and temporal, hence the lower courts. Eventually, the Supreme Court will reconcile all the appeals and decisions on ObamaCare, but why wait another year?

In extraordinary cases, one can get the 18 ears to prematurely perk up:

Supreme Court Rule Rule 11. Certiorari to a United States Court of Appeals before Judgment

A petition for a writ of certiorari to review a case pending in a United States court of appeals, before judgment is entered in that court, 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.

Clearly it was “imperative” that America be spared more of Gore’s snippiness born of 2000 hanging chads in Tallahassee. God knows that Roe’s publicly important “choice” waited over 5000 years after Eve’s bite of the serpent’s apple.

Likewise, must the likely irreparable harm of ObamaCare regulations already burdening the health care and insurance industries be sacrificed upon the altar of refined circuit court dronings? Must the taxpayer-funded HHS Tower of Babel be fully-staffed and War and Peace-length death panel regs be promulgated before Roberts and Alito read the un-fine print? Must labor unions and even whole states of Maine continue to grovel for royal “waivers” or Oklahomans and South Carolinians choose (or not choose) nullification-like “opt-outs” from “exchanges” before Justice Anthony Kennedy gets to play King again?

We can only hope that at least four justices of the nation’s highest court will grant cert and spare us another year of ObamaCare poison and admit that obviously it is of such imperative public importance that the fate of 15+% of the U.S. economy not be held in peril while Obama prepares the edifice for denying pacemakers for 105-year olds so that they can take painkillers and go home.

Chief Justice Roberts rightly seeks conservative responses to appeals. He seeks to make rulings as narrow as possible so as not to overstep the bounds of judicial restraint. But the Constitution of the United States is written, as is Rule 11. There is nothing sacrosanct about any Circuit Court of Appeals when big dollars are being spent on a law that has already been found wanting legally and whose effect is already altering the lives of millions.

Mike DeVine

Legal Editor - The Minority Report

Atlanta Law & Politics columnist for

“One man with courage makes a majority.” – Andrew Jackson

More DeVine Gamecock rooster crowings at Modern Conservative, Hillbilly Politics, Unified Patriots,  Political Daily and Conservative Outlooks. All Charlotte Observer and Atlanta Journal-Constitution op-eds archived at


6 responses to Yes, Virginia, there is a Direct SCOTUS Appeal Clause

  1. lineholder April 21st, 2011 at 6:16 pm

    GC, thanks for the head’s up. I’ll be anxiously waiting to see if the SC takes this on now…and I’ll be praying really hard between now and then they choose wisely.

  2. cactusjack April 21st, 2011 at 7:40 pm

    Assuming all other things being equal, GC, what are the odds for obtaining the most favorable opinion for us? Is it better to get before the SCOTUS sooner – now – or go next year? Any word on if Kagan will recuse herself? (I am not holding my breath).

    • Mike gamecock DeVine April 21st, 2011 at 9:03 pm

      I doubt it matters when the case is heard, in terms of how the justices will vote, but the earlier the case is heard the less viable is any argument based on the law’s longevity. I am actually working on a recusal column that discusses the merits of the demands of Kagan and Thomas. The case that Kagan recuse is strong based on prior recusals, but I take a very narrow view of what should be the causes for recusal. I think the merits of this case will turn on Kennedy. More later, but if I had to predict the outcome, I would say that only the individual mandate gets struck down.

  3. eburke April 21st, 2011 at 10:05 pm

    Great piece, GC! Thanks for keeping us abreast of this.

    Couple of things. First, am I recalling correctly that if Kagan recuses herself (which IMHO she should but I’m not exactly holding my breath waiting for her to do the right thing) and Thomas doesn’t (which IMHO he shouldn’t), even if Kennedy doesn’t rule to uphold the lower court ruling, a 4-4 vote would leave the lower court ruling which found the HCRA unConstitutional intact…right?

    And, second, what’s your opinion that having had the world’s smartest constitutional lawyer publicly call out the author of the Citizen’s United ruling in front of a joint session of Congress, not to mention the entire nation, might put Anthony Kennedy, (who likes to fashion himself as the most enlightened jurist in the room, again IMHO) in a predisposed state to tell Barry to go [redacted] himself.

    • Mike gamecock DeVine April 22nd, 2011 at 1:14 am

      Yes, a tie vote on any issue leaves the lower court ruling in place as the law of that circuit. I suspect that the court will consolidate all appeals in one ruling. In that case, any 4-4 vote would have to be analyzed more particularly as to issues and not a particular appealed case.

      I would not rule out Kennedy basing a ruling on petulance. He certainly doesn’t stand on principle.

  4. pilgrim April 25th, 2011 at 10:29 am

    The Supreme Court has made the decision to NOT expedite the appeal. I am disappointed, but not surprised that given the choice between action and no action they chose to punt.

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