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“Mootness” Explained

What does it mean when a court dismisses a case as moot?

The Constitution outlines specific roles for each branch of American government. Article III, relating to the judicial branch, says a court must only take live “cases or controversies.” Mootness stems from this mandate.

Courts exist to resolve live disputes. They don’t resolve hypothetical issues. They don’t issue “advisory” opinions. That would mean a court is letting people know what the law says but without having a real, live dispute at hand.

What is “Mootness”?

When a case starts, the dispute is live. It’s real. The plaintiff needs resolution. Otherwise a court wouldn’t take it. But sometimes either the passage of time or an intervening event extinguishes the dispute. That’s mootness. A court must recognize when a case ceases to matter. And it will dismiss the case as moot.

Here is a basic example.

Suppose a plaintiff sues her employer claiming she didn’t get a promotion because the employer discriminated against her. Then the plaintiff gets the promotion. If all she asked for in the case was the promotion, then the case is now moot. She got what she wanted. There’s no point in continuing.

Examples of Moot Cases

You can identify a moot case when you realize that the plaintiff doesn’t have a point anymore. Either the plaintiff’s stake in the case is diminished so that she doesn’t have the motivation to zealously advocate her case. Or the remedy she seeks isn’t going to help out her particular situation.

In DeFunis v. Odegaard (1974), a white law school applicant sued the University of Washington Law School because he had higher test scores than some of the minority students admitted. He argued the school’s affirmative action policy discriminated against him and asked the court to require the school to admit him. The trial court agreed, but the decision was overturned on appeal. 

By the time the case got to the Supreme Court, DeFunis was close to graduating from law school. He had registered for his final quarter. At this point, any potential decision the Court could make would be useless. The Supreme Court ruled unanimously that the case was moot:

Because petitioner will complete law school at the end of the term for which he has registered regardless of any decision this Court might reach on the merits, the Court cannot, consistently with the limitations of Art. III of the Constitution, consider the substantive constitutional issues, and the case is moot.

In a more recent example, the Supreme Court dismissed a challenge to a NYC gun control regulation. In New York State Rifle and Pistol Association v. City of New York (2020), a pro-gun group sued the City of New York arguing that the City’s gun travel restrictions violated the Second Amendment. 

Just after the case was accepted by the Supreme Court, the City — perhaps in recognition that it had a losing case — went ahead and removed the regulations that the plaintiffs complained about. The plaintiffs were asking the Court to order NYC to remove the regulations, yet NYC had already done it. Thus, the case was moot. The Court determined that its ruling would be useless. Justice Alito dissented, however, disagreeing that the plaintiffs already got precisely what they wanted. His dissent demonstrates how interpreting mootness can be controversial.

Just this week, the mootness doctrine brought the Supreme Court to cancel oral arguments in the high profile case relating to Trump’s border wall funding. Ironically, the case will go down in history as Biden v. Sierra Club because once elected, Biden stepped into the President’s role. In the case, an environmental group sued the Trump administration because the government sought to use arguably improper funds for the border wall construction. The group asked the Court to stop the construction. 

Then Biden, who has no plans to build a border wall, stepped in. At this point, the case had no point. The government isn’t going to build the wall, so what order could the Court make? Plus, the Biden administration actually asked the Court to cancel the arguments.

Exceptions to Mootness

The mootness doctrine allows a couple of exceptions, so that it’s not improperly used. A court case takes a long time. In DeFunis, the case became moot because it was still going on three years later. Here’s an example of something that doesn’t have three years to resolve: pregnancy. Thus pregnancy- and abortion-related issues can escape mootness because they are capable of repetition yet evading review. Here’s what the Court said about it in Roe v. Wade:

[W]hen, as here, pregnancy is a significant fact in the litigation, the normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied. Our law should not be that rigid. Pregnancy often comes more than once to the same woman, and in the general population, if man is to survive, it will always be with us. Pregnancy provides a classic justification for a conclusion of nonmootness. It truly could be “capable of repetition, yet evading review.”

Another exception to mootness is when the defendant voluntarily ceases the challenged practice but could just as well take it up again once the case is dismissed. In City of Mesquite v. Aladdin’s Castle (1982), the Supreme Court used the voluntary cessation exception in refusing to dismiss a case against a local government as moot. An amusement center challenged a local ordinance regulating coin-operated amusement establishments as unconstitutionally vague. When the case was pending, the City removed the disputed language and argued the case was now moot. Not so fast, said the Court:

A defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice. Here, appellant’s repeal of the objectionable language would not preclude it from reenacting the same provision if the District Court’s judgment were vacated.

The plaintiffs in NYSRPA v. NYC argued for this mootness exception also, but the Court did not address it. Nor did Alito in dissent; he focused on other issues of dispute. Presumably, the Court did not expect the City to pass the same regulations again.

Requests for Damages Can Avoid Mootness

When a plaintiff requests a court to require defendant to take (or not to take) a particular action, the defendant can potentially “moot” the case by beating the court to it. Of course, that only happens when the defendant is more afraid of the judgement than of the action it could be required to take. Mootness is generally more of an issue in civil rights, or systemic impact cases, which ask for action, rather than just money.

Now if a social impact case also requests money damages, the changes of mootness are much less. The defendant can’t get off the hook by just taking the actions requested in the suit. The defendant will still be on the hook for damages. Those don’t go away.

In a case of this term, the Court will address a related issue: whether nominal damages are enough to keep a case from being moot. In Uzuegbunam v. Preczewski, a student sued his college for restrictive speech policies; then the college went ahead and took the policies off the books. Uzuegbunam still wants the case to be resolved, though. He wants a court to rule that the policies violated the First Amendment. He didn’t request consequential damages, though. Only nominal damages. The Court will determine if that’s enough to keep the case alive.

Correction: An earlier version of this report stated DeFunis attended a law school other than UWLS, which was incorrect.

“Mootness” Explained

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About the Author

Mariam Morshedi

Mariam Morshedi

Mariam Morshedi is the Founder and Executive Director of Subscript Law. Before starting Subscript Law, she practiced civil rights law for AARP Foundation, where she litigated housing, consumer and disability rights issues.

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