SCOTUS for law students: Battling over mootness

Mootness is not often the stuff of headlines. But a current dispute over Second Amendment rights and a New York City gun regulation has put mootness in the spotlight.

Last January, the Supreme Court agreed to hear a petition, 18-280, by the New York State Rifle & Pistol Association challenging New York City’s curb on transporting licensed handguns outside the home. The New York regulation, which allowed handguns to be transported only to specified shooting ranges within the city, was upheld by a federal district judge in New York and by the U.S. Court of Appeals for the 2nd Circuit. The lower courts rejected claims that the city regulation violates the Second Amendment, that it interferes with interstate commerce and that it impedes the right to travel.

The Supreme Court’s decision to hear the case marked the first time since 2010 that the justices have agreed to tackle a dispute over the scope of gun rights. Although gun-rights groups have filed numerous briefs urging the court to expand Second Amendment rights, the court had so far declined to take up the issue. Commentators have suggested that the replacement of Justice Anthony Kennedy with Justice Brett Kavanaugh last fall may have given the court a majority favoring strengthened rights of gun owners.

In the 2008 case District of Columbia v. Heller, the court ruled for the first time that the Second Amendment confers a right of individuals to possess guns, at least in their homes for purposes of self-defense. Since then, gun-rights groups have hoped to expand the right beyond the home and beyond self-defense; gun-regulation advocates have pressed to limit gun rights or even to overrule the Heller decision. The issues have divided communities, political parties and the nation.

Soon after the court agreed to hear the New York City case, perhaps because of the prospect of a ruling that might expand the scope of Second Amendment rights, New York City officials moved to amend the challenged regulation and then asked the justices to dismiss the case as moot.

What is mootness and when does it apply? As a general matter, a case becomes moot when the parties no longer have an interest that can be resolved by the court’s decision.

The rule is derived from Article III of the U.S. Constitution, which defines “the judicial power” as extending to “cases” and “controversies.” The Supreme Court has long interpreted this language to mean that federal courts have jurisdiction to decide only those cases in which the parties have concrete interests that will be resolved by a judicial decision. Those tangible interests must be present at every stage of the lawsuit, the court has said, from initial filing to final decision.

A principal theory behind the case and controversy requirement – and behind the mootness doctrine, as well – is that courts will reach the best decisions when the cases they decide are litigated in a process that is truly adversarial on behalf of parties who have a real stake in the outcome.

When tangible interests are no longer present for the parties in a dispute, a case may become moot. The theory, again, is that parties to a case may not make the best arguments and engage in zealous advocacy if they no longer have genuine, tangible interests in the outcome.

Typically, a dispute will become moot because no issues remain that will have a real effect on the litigants. In one well-known example, DeFunis v. Odegaard, the Supreme Court ruled that the claim of a white law student that he was denied admission to law school because of his race and the operation of an affirmative action plan was moot because the student had been allowed to attend law school while the case was pending and was close to graduating. A determination by the Supreme Court that the student was or was not denied admission because of his race would not have affected that individual student’s status or interests, the justices said.

There are exceptions to the mootness doctrine. Perhaps the most notable exception applies when the case involves circumstances that exist only for a short, fixed time period and that may be over by the time the litigation reaches the Supreme Court. In cases involving pregnancy and abortion, for example, a woman will almost certainly have either terminated the pregnancy or delivered a baby well before the dispute can reach the appellate stages. The Supreme Court has carved out an exception for cases that are “capable of repetition, yet evading review.” In other words, if the issues may arise again and will often or always face timing challenges, the federal courts should not dismiss such cases for mootness and may continue to hear the litigation.

Another exception to mootness occurs when the defendant in the case voluntarily decides to halt the contested practice that is the basis of the lawsuit. Because the defendant’s cessation of activity is voluntary, the theory goes, the defendant could also decide to resume the contested activity after the case is dismissed as moot. Therefore, courts should be cautious in dismissing for mootness in such circumstances.

Enter the New York gun case. When New York amended its regulations, lawyers for the city quickly asked the Supreme Court to dismiss the case as moot. The challenged regulations would no longer be enforced, the city argued, and any ruling on the constitutionality of those regulations would have no impact on anyone. The city also noted that New York state changed its gun licensing law to require communities to allow transport of guns within the state. The city “no longer has any stake in whether the Constitution requires localities to allow people to transport licensed handguns to second homes or firing ranges outside of municipal borders,” the city said in its motion asking the Supreme Court to dismiss the case as moot.

Not so fast, replied Paul Clement, representing the New York Rifle & Pistol Association. The case is not moot for several reasons, Clement argued. First, the city’s regulatory changes still take the basic position that the city can regulate transport of licensed guns without regard for the Second Amendment. Second, the city could re-impose regulations, although the change in New York State law makes that more difficult. Third,  the new regulations still prohibit those transporting guns outside the city from making interim stops, such as at gas stations or coffee shops. The challengers also accused the city of trying to avoid having to file a brief defending the regulations by suggesting mootness.

This passionate level of dispute over mootness is not the norm. Mootness is often seen as a dry, narrow, procedural issue. But throw the scope of Second Amendment gun rights into the mix, and the gloves have come off.

The battle escalated in mid-August when U.S. Senator Sheldon Whitehouse, D-R.I., filed a friend-of-the-court brief for himself and four other Democratic senators. The brief, unique in its tone, warned that if the justices expand Second Amendment rights and fail to dismiss the case as moot, the ruling will fuel a growing public perception that the Supreme Court is acting politically and not applying legal principles. The brief accuses gun-rights groups of “an industrial-strength influence campaign” aimed at the court. “The Supreme Court is not well,” Whitehouse concluded, suggesting that the court “heal itself” before there are serious public demands to restructure it.

The Whitehouse brief prompted strong, critical commentary from conservative groups, transforming the mootness fight into a proxy for warfare over the direction of the Supreme Court. “To Save a Bad Gun Law, Democratic Senators Threaten the Supreme Court,” a Heritage Foundation headline proclaimed.

For their part, the justices have taken no action, scheduling the question of mootness for consideration at their first conference after their summer recess, on October 1. New York’s lawyers had hoped for quicker action, perhaps a mid-summer order dismissing the case, but for now they will have to wait.