In the FAQ I recently posted about the process the lawsuit filed by 14 states’ Attorneys General will have to go through to get to the U.S. Supreme Court, I predicted that the case could take as long as four years to get there. In a recent interview, Bill McCollum, Florida’s Attorney General and one of those involved in the lawsuit, said the case could take “a couple of years, hopefully, on an expedited path.” What’s this “expedited path” he’s talking about, you may ask.
Surprise! The word “expedited” has the same meaning in the legal profession that it has in real life. According to Webster, to expedite something is to “execute [it] promptly, to accelerate [its] process or progress, to speed [it] up.” In reference to a lawsuit, to expedite it means that one or both parties intend to request that the court modify or suspend rules setting specific time periods for certain milestones to be reached to make them shorter and that the court schedule a trial at the earliest possible time. As a practical matter, if the court agrees to do this, the parties will be required to, for example, complete discovery faster, resolve any pretrial motions on a faster track, and be prepared for a trial that will occur sooner than it would otherwise.
This sounds good to those of us who oppose this health reform law. But . . . (there’s always a BUT, isn’t there?) . . . I can see at least four problems that should prevent us from breathing any sighs of relief or kicking back and twiddling our thumbs for the next few years.
First, expedited status is usually granted if the court is convinced that urgent action is required to prevent harm to one or both parties. If the parties don’t agree that an expedited schedule is necessary, there will be a hearing on the matter. Both sides get to argue their positions, and the court makes the decision. So, expedited scheduling is not a foregone conclusion just because one party may request it.
Second, just because a case is expedited at the trial level doesn’t mean it will be expedited on appeal by the appellate courts. Each court gets to decide the issue anew.
Third, even in the estimation of a “hopeful” Attorney General McCollum, an expedited schedule will result in a resolution “in a couple of years.” A lot can happen in a couple of years. Look what’s happened in the last 18 months!
Fourth, our founders designed the federal court system as an independent branch of our government for the purpose of protecting us from what they called the tyranny of the majority. If we don’t make that tyranny clear to the judiciary in this instance, we are neglecting our responsibilities as citizens of this great republic. We’re failing to support the Attorneys General who’ve gone to bat for us by filing this lawsuit. Randy Barnett, a law professor at Georgetown University, articulated this point very well in a recent interview:
JUDGE NAPOLITANO: Do the courts have the institutional courage to say to Congress, “This is a line on the other side of which we won’t let you go?”
PROFESSOR BARNETT: Well, the smart money is always that the Court will uphold what Congress does. But in this case, if this bill turns out to be wildly unpopular and, in fact, one or both houses of Congress flip parties as a result and, perhaps, there’s a repeal move in both houses that’s vetoed or is subject to a filibuster in one house, I think the Court may feel differently. It may have more courage to actually enforce a line in the Constitution (emphasis added). . . .
. . .
JUDGE NAPOLITANO: Will the Court preserve us from the tyranny of the majority? The President keeps saying, “We won the election. This is what they elected us to do. It’s a policy decision for the legislative branch and not for the courts.” But the whole purpose of an independent judiciary, I submit, is to protect us from the tyranny of the majority. Otherwise, nobody’s liberty or property is secure.
PROFESSOR BARNETT: Well, I agree with you about that, and I commend Attorney General McCollum for bringing this lawsuit, and I think the lawsuit has great merit. But I don’t think that the American people who do not like this bill should put their faith in the courts to save them (emphasis added). I believe that political action of the kind that everybody’s talking about is going to be necessary, and you just cannot count on the courts to do this.
What political action is Professor Barnett referring to? The answer is crystal clear. We need to impress upon politicians, bureaucrats and judges at all levels just how wildly unpopular this legislation is. We need to see that both houses of Congress are flipped or turned, beginning with the November elections. We need to press our Congressional representatives to repeal and replace this so-called reform. We also need to move our state legislatures to assert state sovereignty and act upon it by adopting state laws and/or constitutional provisions that would nullify the current federal health care reform law.
Now is not the time for “summer soldiers and sunshine patriots.” The conservative movement needs to catch fire. Make your voice heard on your street, in your town, in your county, in the offices of your state representatives at your state capitol, and ultimately, in the halls of Congress, the office of the President, and the courtroom of the U.S. Supreme Court.
You can watch the interview by Judge Napolitano with Professor Barnett:
