The Supreme Court almost certainly has to hear the case. The logical conclusion of Obama not wanting the court to hear the case is because he is not confident they will not strike it down. He also must not believe that if it is struck down it can be used to some positive campaign effect, nor has any chance of repassing anything similar. The longer the Supreme Courts wait, the more of a chance he will have to replace one of the members.
"The Obama administration told the Supreme Court on Monday night it should stay away from a high-profile challenge to the 2010 health care law until after a lower court has had a chance to review the case.
Acting Solicitor General Neal Katyal wrote, "there is no basis for short-circuiting the normal course of appellate review." Katyal also says Virginia Attorney General Ken Cuccinelli's case is problematic because he may lack sufficient standing to challenge the health care law.
The Supreme Court normally takes cases only after they've been reviewed at least once by appellate judges. Virginia Attorney General Ken Cuccinelli says that's not appropriate in this instance.
In his filing last month, Cuccinelli said there's a "palpable consensus" that the high court will ultimately have to pass judgment on the merits of President Obama's health care law and should do so without delay. Furthermore, Cuccinelli argues that his case involves "pure issues of constitutional law" that appellate judges on the Fourth Circuit U.S. Court of Appeals will be unable to definitively resolve.
Katyal says there is no question that the case is of great public importance but uses the language of the court's own rules to say it is not "one of the rare cases that justifies deviation from normal appellate practice and require[s] immediate determination in this court." Katyal points out that the Virginia case and several others are already in the pipeline and little time may be saved if the court were to jump in now."