[nathanbedford]

“This confirms what I had already concluded: that the government is confident that it’s going to prevail in the Supreme Court and would like to have a decision sooner rather than later,” former acting solicitor general Walter Dellinger told Politico."

I believe the former Solicitor General is correct in both his suppositions. The probabilities have always been the law will be affirmed by the Supreme Court because that has been inexorable drift of the law and because the court is so structured.

There are 4 dead certain votes for finding the law constitutional and there are 4 votes, any one of which, could go the other way. There is a 5th vote, Justice Kennedy, which certainly could go either way. The odds are that one of these 5 will crack. The 4 liberals are so given over to practicing politics in black robes that there is simply minimal chance that any of them would actually undertake to do constitutional justice. The 4 staunch conservative justices will actually vote according to their oaths and an honest man can simply get it wrong. Our side plays by the rules and the other does not.

I agree that the Obama administration wants a decision "sooner rather than later" because as things stand today, they have nothing to lose. They are on a course to lose the election and will need a boost next summer. If they get it from the Supreme Court so much the better. If the court rules against them, they probably will have lost the election anyway. Besides, they always have a chance to spin the results and use it to whup up the base.

I doubt very much whether the report allegedly coming out of WABC is accurate. In any event, the Chief Justice does not control what the court chooses to hear that is decided by 4 equal votes. The probabilities are that the court has not accepted an emergent appeal of some kind and that is what the listener heard.

[eyedigress]

I think he is wrong. The court will look at the reasoning of 11th and decide whether arguments need clarification. If that is not met, the 3 panel ruling will stand. (BTW, I believe Justice Kennedy would not allow the fed to force people to buy a private product just because you are a citizen)

[Stosh]

Gen. Forrest,

Thanks for the always cogent, if somewhat sobering analysis.

As a hypothetical (I know the odds of it happening are slim), if one of the lefty jurists is forced to recuse or is incapacitated, and a 4/4 decision is the result of the appeal, what are the consequences of a tie, given that we have conflicting decisions in two of the inferior courts?