Evading Review

What if the New York City Council, finding a few moments in between enacting a regulation criminalizing the failure to use preferred pronouns and protecting black, but only black, employees’ hair style choices, enacted a regulation that prohibited abortion for any woman who couldn’t do 100 push-ups. And a non-uterus-challenged but physically-limited person sued for violation xir constitutional rights when denied an abortion.

An outrageous constitutional violation, most would cry, and with good cause. The case was granted certiorari and the City Council plotzed. In reaction, they repealed the offending regulation, and sent a letter off to the Court that they’d seen the error of their ways, fixed it, and there was nothing more to see here. As for the plaintiffs in the case, they offered free abortions, even though years had since passed and gestation, being what it is, made the gracious offer less than utilitarian.

Of course, NYC was notorious for its antagonism toward abortions, and still has a wealth of regulations impairing the right to obtain one, and the rest remained in force. And they could always re-enact, and repeal, the same or some variation of the regulation in an hour or less.

The plaintiff in the case responded to the City’s repeal with a loud, but clear, word: bullshit. They didn’t see the light, and had every intention of continuing to burden the right to an abortion whenever possible because they just hated that right in New York. Here, they gamed their regulation to try to avoid what was about to happen.

Everyone, but everyone, knew what was about to happen, because the law was so flagrantly unconstitutional that there was no doubt, no question whatsoever, that it would be held unconstitutional. More to the point, they feared the Court’s decision would be sufficiently clear and expansive as to leave no doubt that the City’s entire anti-abortion regime was unconstitutional. The City was mere steps away from watching its unconstitutional effort to prevent abortion come crashing down around it.

Up to now, the City enjoyed a friendly circuit court that shared its hatred of abortion, and had no plans to enforce a constitutional right it disfavored at the expense of a City bent  on eradicating abortion. If the Supreme Court wanted to reverse the Second Circuit, let them. But over the prior decade, the Circuit dared the Supremes to do something about it, and SCOTUS proved impotent. They clearly refused to apply the Constitution as held by the Supreme Court and not a single case was granted cert. So the Second Circuit, New York City, remained a carve-out from the nation, secure in impairing the right to an abortion, despite it being clearly unconstitutional, and got away with it. Until cert was granted.

And then, and only then, NYC pulled the plug on their reg, and cried “moot.” Is that it? Do they get away with it? Will the rest of their regime go untouched? Can they reinstate the reg, or some reg of similar effect, and wait out the years until a new case comes before the Supreme Court, hoping that cert isn’t granted the next time? Or if it is, pull the same shenanigans?

“What’s left of this case?” a skeptical Justice Ruth Bader Ginsburg asked on Monday. Justice Sonia Sotomayor said to Paul Clement, who argued on behalf the challengers to the since-scrapped city rule, “What you’re asking us to do, is to take a case in which the other side has thrown in the towel and completely given you every single thing you demanded in your complaint for relief, and you’re asking us to opine on a law that’s not on the books anymore.”

This is quite correct, whether one argues it’s more a matter of technicality than practicality. The specific regulation in issue was repealed. Winner, winner, chicken dinner.

Since, under the Constitution, federal courts may hear only actual “cases” and “controversies,” a dispute in which the government gives the suing party what he or she seeks is considered moot. At best, deciding the case would be no more than issuing an advisory opinion, which the Supreme Court frowns on. At worst, addressing the merits would be a judicial power grab.

It’s similarly correct that the jurisdiction of the Court is limited to “cases and controversies.” The Court cannot make pronouncements about law in the absence of a legitimate dispute. At that point, the case would be moot, as no relief can be offered. But as with most things law, it’s not quite so simple.

The law recognizes that issues arise, and affect people, that manage to evade review, whether because the impact happens so quickly that the consequences are over before the case can reach the Supreme Court or the government engaged in flagrantly unconstitutional conduct pulls a move like the New York City Council. And so the Supreme Court has addressed this problem by recognizing that it won’t be deprived of dealing with such conduct under the “case and controversy” requirement if the conduct in question is “capable of repetition yet evading review,” an exception to the mootness doctrine.

One of the wrinkles of Article III is that the Court will grant standing to parties without live injuries, so long as the problem is one that is “capable of repetition, yet evading review.” The primary involves abortion cases, as gestation lasts (at most) 9 months. An appeal to the Supreme Court will always take longer than this period. Thus, the Court will find standing for a plaintiff who is no longer pregnant (such as Norma McCorvey, better known as Jane Roe), because otherwise the case in controversy can never be adjudicated.

The Norma McCorvey referred to was the Roe in Roe v. Wade. Since it invariably takes more than nine months for a case to go from commencement to oral argument before the Supreme Court, no case would survive the mootness doctrine. But for the exception, there would be no right to an abortion at all, as no abortion case could survive long enough to obtain relief, human gestation being what it is.

Except the case in issue isn’t about abortion, a word never mentioned in the Constitution, but about the right to keep and bear arms, a right specifically protected by the Second Amendment as held in Heller and McDonald. New York City Council isn’t inclined to impair the right to abortion, but it doesn’t care for guns at all, even if both have been held by the Supreme Court to be protected constitutional rights.

15 thoughts on “Evading Review

  1. Keith

    In your hypo, the city could change the rules back at any time.

    Here, the city never changed the rules, but the State did and through the magic of preemption, the law that’s still on the books went *poof*.

    So, the question isn’t whether the City can just change the law back. They can’t (although technically, the State can).

    As far as I can tell, SCOTUS did offer another rational to defeat mootness in Northeastern Florida Chapter, Associated General Contractors of America v. City of Jacksonville, Florida. But, there it relied on the city being able to unilaterally act.

    The case is not moot. It is well settled that the voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the practice’s legality, because a defendant is not precluded from reinstating the practice. Here, there is more than a mere risk that the city will repeat its allegedly wrongful conduct; it has already done so. Insofar as the city’s new ordinance accords preferential treatment in the award of city contracts, it disadvantages petitioner’s members in the same way that the repealed ordinance did.

    Because they could reenact it.

    “ Although the challenged statutory language at issue in City of Mesquite had been eliminated while the case was pending in the Court of Appeals, we held that the case was not moot, because the defendant’s “repeal of the objectionable language would not preclude it from reenacting precisely the same provision if the District Court’s judgment were vacated.”

    Where the State was the party making the change, so that the city couldn’t do that, would the rationale still hold?

      1. John Barleycorn

        ok…. There were 9 paragraphs in there.

        Nice…! even for you.

        LOL. should I post a “VEEEEEEEEEEEEDO”

        shhhhhhhh drones are clean! Campus Money!

        yes dear!

        Man-hat must be a bitch.

        1. John Barleycorn

          “Where the State was the party making the change, so that the city couldn’t do that, would the rationale still hold?”

          maybe 10.

          big boy pants and all

          1. SHG Post author

            Just because Keith lacks impulse control doesn’t mean you have to.

            Oh wait. That was a pretty darn foolish thing for me to write.

          2. John Barleycorn

            Stop dave, everyone just stop.

            Scott has an addiction, no weekly.

            paratroops, paragraphs, patrol, page, paradigm, put….. no put.

            ok, NO! enough!!!!!!!!!!!

            he isn’t that fragile. enough!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!


    1. David

      While Scott tried to make a particular point through the use of analogy, Keith would have none of it, doing what little he could to show everyone his truth.

  2. Jim Tyre

    No mention that, based on the oral argument transcript, Justice Garland appeared to be the strongest advocate against a finding of mootness?

    Oh SNAP. Gorsuch, not Garland. Nevermind.

    1. SHG Post author

      I wonder if Garland would have been less eager to support constitutional rights, as if this case involved any other amendment or a crim deft.

  3. L. Phillips

    It is a rare morning when both posts put a broad smile on my face, but you pulled it off today. Not that my perverse opinions count for a bucket of spit in this here hotel.

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