I've been trying to think through the question of how soon the Supreme Court might act on a case presenting the issue of whether Administrative Law Judges (ALJs) at the Social Security Administration, as currently hired, are constitutional. The normal process would be for cases to be filed in District Courts presenting the issue. The District Courts would issue decisions. The parties who lost in District Court would appeal the decisions to the Courts of Appeals. Once a few Courts of Appeals have acted on these cases, there would be a split, that is different Courts coming to different conclusions. The Supreme Court would then grant a writ of certiorari (cert) in one of the cases to resolve the issue. If this process is followed, there probably won't be a Supreme Court opinion on the issue until sometime in 2020.
There are some ways this process could be speeded up. While it usually does, the Supreme Court doesn't have to wait until there's a split between different Courts of Appeals. It could take the first case on this issue decided by one of the Courts of Appeals. However, I don't think that would speed up things very much. If these cases proceed in the traditional manner there will be enough of them that this issue will probably come up in several Courts of Appeals around the same time and my guess is that there will quickly be a split.
The Supreme Court doesn't have to wait for a decision from a Court of Appeals. It can grant cert directly on a case that has just been decided by a District Court. However, it is exceptionally rare for that to happen. If the Solicitor General, who represents the federal government before the Supreme Court, asks for it, maybe, but this may not be the sort of thing that the current Solicitor General would regard as that urgent.
What I really wonder is whether one or more of the Courts of Appeals will raise the issue of Social Security ALJ constitutionality sua sponte, this is, of the Court's own volition, in cases already pending in the Courts of Appeals on other issues, asking the parties to brief the Lucia issue and then deciding it even though the argument had not been presented to the District Court. If that happens, we could see action from the Supreme Court by this time next year. It's certainly unusual for one of the Courts of Appeals to raise an issue sua sponte but this is an exceptional situation. The judges of the Courts of Appeals are well aware of the urgency to get the issue resolved, far more so than Supreme Court justices. At any given time there are probably several hundred Social Security cases pending in the Courts of Appeals. Even if most judges of the Courts of Appeals wouldn't want to take up this issue sua sponte, wouldn't there be enough who would to get this argued and decided in some of the Courts of Appeals by late this year? That's what it would take for the Supreme Court to decide upon the issue next year. Would Social Security's attorneys even object to a Court of Appeals panel wanting to take this issue up sua sponte? They also have an interest in getting this decided soon. This might make for some interesting oral arguments in Social Security cases. One thing to note is that there are few oral arguments in the U.S. Courts of Appeals during the summer. The judges are still working but they hold few oral arguments during the summer. We may not see the sua sponte issue coming up until September. If you've got an oral argument coming up in the next three months in a Court of Appeals in a Social Security case, you'd better be ready in case the question is asked. However, I would note that even if some of the Courts of Appeals take this issue up sua sponte, there may still not be enough time to get this before the Supreme Court in time to get a decision by this time next year. Some of the Courts of Appeals would have to act pretty quickly to get this issue on the Supreme Court's docket in time. Maybe it's just wishful thinking on my part to believe it's possible.
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