Technical question about the Supreme Court

October 17, 2020 8:14 AM

The Court is due to take up the Affordable Care Act on November 10. What are the possible implications of that review if Biden wins?

Say if Biden wins. The Court has heard the case, but does not issue a ruling until sometime next year. Could his, potential, Administration then go to the Court and ask that the case be removed before a ruling is issued? Is there precedent for this? I am not a lawyer obviously .

posted by jtexman1 to Law & Government (4 answers total)

The Supreme Court and Executive Branch (President) are co-equal branches of the government. The Supreme Court is not subordinate to the Executive Branch. Classically, this is codified in Marbury v Madison from 1803. Biden could certainly ask the case be removed from the docket, but the Supreme Court would be unlikely to listen. They would have no reason to care, and they would likely be inclined to take the request somewhat negatively to preserve their independence. Further, there's little precedent for removing cases from the Supreme Court docket for any reason - in fact, I have never heard of it happening and a quick Google search doesn't reveal any examples.

In this particular case, declining to hear the case would likely result in the effective dismantling of the ACA. The 5th Circuit Court of Appeals has already ruled that the ACA is unconstitutional because it is no longer a tax. Hence, if the Supreme Court declines to hear the case, that decision will stand and other Appeals Courts are likely to follow it given the Supreme Court would have implicitly agreed to it.
posted by saeculorum at 8:28 AM on October 17, 2020 [2 favorites]

I think that one implication is that if the Supreme Court did anything radical to the ACA, it would increase the pressure on Biden and the Democrats to increase the size of the court to change its political makeup. That's assuming that Biden wins and the Democrats take the Senate.
posted by ArbitraryAndCapricious at 9:07 AM on October 17, 2020

Somewhat depends on the current Associate Justice nominee, if she is confirmed and contributes a radical opinion no mater how politely couched in technically correct jurisprudence language, it could incite public opinion to the degree that expanding the court could be a real possibility.

But she could hold off, either recuse herself or find a way to support the ACA, not from any legal goodness but to build a reputation of reasonableness so that when she writes majority opinions reversing Roe v. Wade or even elements of Brown, she'll have a "but I'm a moderate justice, just look at my record" excuse.
posted by sammyo at 9:56 AM on October 17, 2020 [1 favorite]

Only the party who filed the petition to have the court consider the case can withdraw the request. The California v Texas case combines two originally separate case and involves petitions filed on both sides of the issue, so even a voluntary withdrawal of one petition would not work.

A Biden Administration would not have any basis to ask the Court to do anything about the case, any more than you or I would. (The Solicitor General was not invited to file a brief, as best I can tell.)
posted by yclipse at 4:12 PM on October 17, 2020