A Minor Update on the Sherley Human Embryonic Stem Cell Case

The long-running saga of Sherley v. Sebelius – the challenge by two adult stem cell researchers (and initially others) to federal funding for hESC research, founded mainly on the Dickey-Wicker amendment – may finally be nearing an end.  When the case was last seen, the DC Circuit, acting through a quite conservative panel of three judges, had ruled against the plaintiffs, upholding the district court’s grant of summary judgment for the government. The opinions were split in somewhat odd and interesting ways (see the discussion in my most recent – and ninth – blog post on this case, from August 30, 2012, here).  As that post pointed out, the plaintiffs could then seek rehearing en banc from the entire DC Circuit or file a petition for certiorari, asking the U.S. Supreme Court to review their case.

The plaintiffs opted to go straight to the Supreme Court and filed their petition for certiorari on October 10.  The government filed its response on November 30 and, according to the Supreme Court’s docket site, here, yesterday the case was distributed to the nine justices for consideration at their conference on January 4, 2013.

As I argued in August, it seems to me highly unlikely that the Court will decide to hear this case, which involves the interpretation of some easily changeable congressional language as well as some somewhat arcane procedural issues about the “law of the case” in the DC Circuit.  In addition, and importantly, there is no “circuit split” – this isn’t a case where one federal appellate court, covering states, says the law is “X” and another court, covering other states, says the law is “not X.” But you never know – and it only takes four votes to grant a petition for cert (though, of course, it usually takes 5 votes to win a case).

If the Court denies cert, I think this case is finally, after about three and a half years, dead.  (See my August post for the full time-line and for links to my earlier posts.)  If it decides to grant cert., I suspect it would hear arguments in mid-April with a decision by the end of June.  My guess, though, is that on Friday, January 4 or shortly thereafter, we will see “cert. denied” and an end to the chasing of this lengthy and unproductive red herring of a lawsuit.

We shall see.

Hank Greely