RBG on why the Court granted Cert in King v. Burwell Without a Circuit Split

August 3rd, 2015

One of the lingering questions from King v. Burwell was why certiorari was granted in the absence of a circuit split–especially if there were only three (not four) votes to reverse. Were there four votes for cert? If so, who was the fourth vote–AMK or JGR? Or maybe there were more than four votes for certiorari, and those Justices took the case knowing the Court would affirm.

RBG may have offered one additional clue in this mystery during her remarks at Duke Law School:

This explanation prompted Siegel to ask why the Court had granted review in three other high-profile cases from last Term – King v. Burwell, Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc., and Arizona State Legislature v. Arizona Independent Redistricting Commission — that did not involve a circuit split, only to affirm the decision below.  “Are the criteria changing” for granting review, Siegel asked?  Ginsburg’s response, in short, was no, and she reminded Siegel with a smile that, although it only takes four votes to grant certiorari, it takes five votes to prevail.

It seems like there were only four votes for cert, and not five, based on this remark (assuming she was being serious and not whimsical). If so, who was the fourth vote. The Chief or Kennedy? Did Kennedy vote to take the case, with an ounce of uncertainty, and then decide to affirm? Or did Roberts take the case knowing that this challenge should be dismissed as quickly as possible–no sense stretching it out.

The riddle of the SCOTUS sphinx continues. (BTW, earlier this week I saw a baby stumbling around with his grandfather’s cane, and I had a total Riddle of the Sphinx moment).