The first round of the legal fight over the Obama health care reform legislation to reach the Supreme Court goes to the Administration. But the victory is hardly a knockout as the justices, including Elena Kagan, didn't rule on the merits of the controversial law.
Kagan's apparent participation in reviewing the case suggests that she will continue to involve herself in other appeals that are likely to reach the high court. During her summer confirmation, Kagan denied that she had played a role in advising the Obama Administration on its health care efforts.
When asked if she would recuse herself from any health care related cases Kagan said she would consider them on a case-by-case basis, "carefully considering any arguments made for recusal and consulting with my colleagues and, if appropriate, with experts on judicial ethics."
As an Obama appointee, and having served as the president's first Solicitor General, Kagan's presence on the court may mean that she could ultimately vote in favor of the health care law. That was something Republican senators unsuccessfully tried to discern over the summer.
In the case that was denied further review Monday, a former state lawmaker in California filed a federal lawsuit claiming the health care law compels him to maintain health insurance against his will. The government successfully persuaded a federal trial court judge to dismiss the case.
Instead of appealing the decision to an intermediate court of appeals, as is normally the case, Steve Baldwin and the Pacific Justice Institute went directly to the Supreme Court. They claimed the matter was of such importance that it demanded immediate attention from the high court.
"[Due] to the magnitude of the impact of the Act on the economy and the health care and health insurance industries, as well as the fact that a significant portion of the Act is in effect and is already being implemented in all other respects, this Court should intervene now to determine the constitutionality of the individual mandate provision," Baldwin's lawyers wrote to the court.
Monday's decision to deny that review came, as is custom, without explanation but would have been extraordinary had the justices decided to take the case without further appellate review from the lower courts.
Baldwin's lawyers argued that since the judge's decision to dismiss his case conflicts with a ruling another judge made in Virginia involving a similar lawsuit, the Supreme Court should settle the dispute. That may yet happen, just not now.