wow....
I wonder if Roberts had a change of heart... again.
I wonder if they can fast track this... for before the election.
Less than a month after the Court had ruled, Libertyâs lawyers filed their motion for a rehearing. What they sought was a withdrawal of the Courtâs prior order that simply denied any review of Libertyâs petition (that was one of several petitions that the Court never accepted for review, but disposed of with simple orders after the health care ruling came out). Libertyâs rehearing plea asked that, in place of a simple denial, the Court vacate the Fourth Circuit ruling that it lacked jurisdiction, and remand the case to be reconsidered in the wake of the health care decision.
If the Court agrees to do that, Libertyâs attorneys said, they would renew their claim that the individual mandate was unconstitutional on religious freedom grounds, and that the employer mandate was unconstitutional on all grounds â under the Commerce Clause, the Necessary and Proper Clause, and the Taxing Clause.
Ordinarily, the Court simply denies rehearing pleas with routine orders. The other side in such a situation is not even allowed to react to the rehearing petition unless the Court explicitly asks it to do so. The Court held onto the Liberty rehearing plea over the summer â a period during which it routinely denied a host of other rehearing petitions, without comment. The Justices took up the Liberty plea at their September 24 Conference, resulting in Mondayâs order asking the Obama Administration to file a response â within thirty days â with advice on what the Court should do with the Liberty case. While not signaling what the ultimate disposition might be, that was a sufficient break from the normal practice that it carried at least potential significance.
Under the Courtâs rules, a party seeking to undo a denial of a petition must show that there have been âintervening circumstances of a substantial or controlling effectâ or a substantial argument that had not been made earlier. Liberty told the Court that its decision in the health care case was the changed circumstance, and it thus wished to take advantage of that when the case got back to the Fourth Circuit in Richmond. A rehearing plea must also carry with it a formal statement by attorneys that they are not asking for relief to delay the case, and that they are making the request âin good faith.â
Once the Obama Administrationâs Justice Department files the response sought by the Court Monday, the Court will then act. It has the option, of course, of denying the rehearing petition without giving an explanation, especially if it finds no basis for reviving Libertyâs claims. There is no timetable for the Court to act on the petition after the government response has been filed at the end of this month.
