NY Times Editorializes In Favor of En Banc Review in Halbig

August 31st, 2014

This just may be the biggest en banc decision I can recall. Halbig is it? Really Big! (I’ve been saving that pun for a really long time).

The New York Times Editorial Board has taken a position on whether the D.C. Circuit should grant review in Halbig. Has the Times ever editorialized concerning an en banc call before?

Now the fight has shifted to an arcanelegaldebate over whether the full appeals court in the District of Columbia should rehear the case or allow it to be appealed directly to the Supreme Court.

The law’s defenders would prefer a rehearing. They are confident that the full court, with a majority of judges appointed by Democratic presidents, would overturn the panel’s ruling. The opponents want to fast-track the case to the Supreme Court, hoping that the five conservative justices will uphold the ruling. They argue that there should be no rehearing because the case is not of “exceptional importance,” one factor the appeals court considers in deciding whether to order a rehearing.

The stakes here are high, since the Supreme Court is almost certain to step in when different federal appeals courts reach opposing results on the same question. If the full D.C. appeals court were to overturn the panel’s ruling, there would be less reason for the Supreme Court to get involved. But the legal maneuvering should not obscure the fact that six of the eight federal judges who have considered the challengers’ subsidy claim have seen right through it.

I’ve explained that this perception–that Obama nominees will rule for Obama–is a “dangerous mindset.” The politicization of the courts may seem advantageous in the short run, but I fear what it means in the long run. If we learned any lesson from NFIB, it’s that courts do not react well to pressure from the media–or at least they don’t react the way we think they will.

Let’s assume that en banc review is granted. Then for the next 6 months, there will be pressure on the D.C. Circuit–in particular the newly-appointed judges–to uphold the law. Do you really think this is the type of pressure the judges would want to go through? Especially when the Court would likely grant cert in any event? The D.C. Circuit, keeping with their practice of seldom granting en banc review, may be counseled by letting this one go, and allowing the Court to deal with it.

As a reminder, the SG’s Brief in opposition to cert is due on September 3.