We are being played. Step One: SCOTUS unexpectedly agrees to take a case

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10. the Court taking this case was about as unexpected as the sun coming up in the morning

A three judge panel of the Fourth Circuit upheld the law. A three judge panel of the DC Circuit struck it down, but the full circuit agreed to hear it "en banc." Because of the political make up of the DC Circuit, it is widely assumed that the full DC Circuit will uphold the law.

While, strictly speaking, there currently is no split in the circuits (because the DC decision is vacated pending decision en banc) and while it is likely there won't be a split after the full DC Circuit reconsiders the three judge ruling, whether or not the Supreme Court grants certiorari to hear a case is a matter of discretion. In other words, while a split in the circuits makes it much more likely the Court will take a case, it doesn't have to. Moreover, the Court's rules state a number of other situations in which certiorari will be considered appropriate, including when "a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court".

Thus, while the court most often hears more cases when there is a split in the circuits, the decision to take this case is neither inconsistent with its rules or unprecedented. It should be no surprise that the Court had at least four members who wanted to hear the case. (Believe me, if the first two cases had struck down the law, there also is no doubt that the ACA supporters on the court would have voted to grant cert and we'd be cheering them for doing so). Moreover, there are two other cases raising the exchange issue that are pending in other circuits; while predicting the outcome of those cases is tricky, both of those circuits have more repub appointed members (if you include members on senior status) than judges appointed by Democrats. In the case arising in the Tenth Circuit, the District Court just ruled against the law at the end of September. The case from the Seventh Circuit is still pending in the District Court. Given the possibility that one or more of these cases will strike down the law, it is likely that even the Democrats on the Court were not strongly opposed to hearing the case now.