its not an "end run around the legal process" - its simply an acknowldgement that the SCOTUS as currently composed, will rule against them. if we had a couple more Clarence Thomas's, the case would go the other way.
The 4th Circuit Appeals Court seems to disagree. It doesn't matter if the Supreme Court is made up nine Clarence Thomas' or nine Stevens' it's still the Supreme Court of the United States. As the 4th Circuit Appeals suggested, it damages the credibility of the government when the ducks having its legal position reviewed by the highest court in the land because it's afraid it might lose.