So this post continues my attempt to explain the content of my Federal Courts class in something resembling plain English. Part 1 dealt with standing. The requirement that a plaintiff have “standing” to bring suit is one of the ways the courts ensure that they are hearing real “cases” and “controversies,” as the Constitution requires. In the previous post, I said that cases and controversies are a “subset” of “all the things you could be pissed off about.” In other words, there’s a large universe of things to be upset about — bad government policy, for example, or immoral behavior. You could imagine a system in which the courts would render opinions about government policies before they are put in place, or about how best to behave. But our federal courts do not do this.
The reasons for this are somewhat complex, but they can probably be boiled down to two factors: respect for the political process, and institutional legitimacy. We can see why by imagining that such opinions (called “advisory opinions”) are legally binding. This would give judges tremendous power to interfere unnecessarily with the ability of the people and their representatives to engineer good social policy. Federal judges, after all, are unelected and have life tenure. To have unelected, insulated judges mucking around in the works by issuing official legal opinions, while legislators are trying to craft difficult and controversial legislation (Obamacare, say), is probably not helpful. On the other hand, imagine that the opinions are not binding. Now you have a different problem: such non-binding opinions might actually undercut the courts’ authority, giving the impression that legal opinions are something less than fully authoritative, or that the courts need the other branches to give their decisions effect.
So the courts do not give advisory opinions. Opinions about matters where the plaintiff lacks “standing” — for example, where the plaintiff is trying to assert the legal rights of some third party — are considered advisory opinions. Another way of putting it is that cases where the plaintiff lacks standing are “non-justiciable.” In this post and the next one, we’ll discuss three more ways a case might be non-justiciable: if the case is moot or, conversely, if it is not yet ripe; or if the problem to be resolved is deemed a “political question.”
Mootness and Ripeness
Standing, you will recall, is the requirement that anyone who brings a case in a federal court should be able to show three things: that she has been injured (or soon will be injured) in some concrete and particular way; that the injury is “fairly traceable” to the defendant’s conduct; and that the court can provide a remedy that is likely to solve the problem. Mootness and ripeness basically address the same concerns, but with a temporal element in play. Your case is deemed moot if you once had standing to bring the case, but don’t anymore, and it is considered unripe if you might have standing in the future, but don’t yet. Let’s look at each in turn.
Often, a case is deemed moot when the injury or problem has been resolved, so there’s no reason to let the suit continue. For example, a habeas corpus petition is moot once the prisoner has been released. A suit for specific performance of a contract becomes moot if the defending party actually fulfills her part of the bargain. And an action to collect a debt becomes moot if the debtor dies. (Usually.) In all these cases, the plaintiff’s cause of action simply disappears.
Sometimes, we might intuitively think that the “problem” is ongoing, yet a court might still find the case moot. In the previous post, I discussed the case Fisher v. University of Texas, a suit challenging the constitutionality of the University’s use of race as a factor in admissions. I suggested that one of the problems Fisher faced in prosecuting her claim was that she had already graduated from another college, and so would not be applying again. Thus she was in no danger of suffering, in the future, the alleged harm of being discriminated against. And this came up almost immediately in oral arguments:
She has graduated.
Injunctive relief, she’s not going to get.
And in City of Los Angeles v. Lyons, the plaintiff had been injured by an LAPD officer aggressively applying a dangerous chokehold, the terrible story of which I reproduce here just to give you a sense of the injury involved:
According to the uncontradicted evidence in the record, at about 2 a.m. on October 6, 1976, Lyons was pulled over to the curb by two officers of the Los Angeles Police Department (LAPD) for a traffic infraction because one of his tail-lights was burned out. The officers greeted him with drawn revolvers as he exited from his car. Lyons was told to face his car and spread his legs. He did so. He was then ordered to clasp his hands and put them on top of his head. He again complied. After one of the officers completed a patdown search, Lyons dropped his hands, but was ordered to place them back above his head, and one of the officers grabbed Lyons’ hands and slammed them onto his head. Lyons complained about the pain caused by the ring of keys he was holding in his hand. Within 5 to 10 seconds, the officer began to choke Lyons by applying a forearm against his throat. As Lyons struggled for air, the officer handcuffed him, but continued to apply the chokehold until he blacked out. When Lyons regained consciousness, he was lying face down on the ground, choking, gasping for air, and spitting up blood and dirt. He had urinated and defecated. He was issued a traffic citation and released.
Both Justice White, writing for the majority, and Justice Marshall, writing in dissent, agreed that to succeed in an action for damages against the city, Lyons would have to show that the use of the chokehold was city policy even “in innumerable situations where [the police] are not threatened by the use of any deadly force whatsoever.” Yet, assuming he could in fact show that the city had such a policy, the majority felt that he could not show any substantial danger that he, personally, would be placed in the chokehold again. Because of this, his personal case for an injunction ordering the city to stop using such a policy was moot. (And obviously he can’t sue as a citizen, because of the “standing” doctrine discussed in Part 1.) So, the majority concluded, he could not sue for the injunction. (Marshall disagreed, although that was sort of his thing.)
However, happily for victims of unjust but non-recurring events everywhere, there is frequently a damages claim still available — and claims for damages look backwards to the specific injury, not forwards to some prospective injury. Sometimes, the damages may be nominal (my understanding is that Abigail Fisher is seeking only the return of her application fee), but almost any claim to actual damages is enough to get you into court, where you can have the satisfaction of making your legal or constitutional argument. (Mr. Lyons, of course, was presumably able to sue the City of Los Angeles for medical costs and pain and suffering, so the reward is not always purely civic.) What this means, for plaintiffs’ lawyers, is that the choice of an appropriate remedy is part of avoiding a problem with mootness.
One general test for mootness is whether one either has sustained (in the cases of backwards-looking cases) or is immediate danger of sustaining (in the cases of prospective or ongoing cases) a harm which is (1) the result of the defendant’s actions, and (2) is “real and immediate” rather than “conjectural” or “hypothetical.” (Lyons) A slightly different formulation is found in Defunis v. Odegaard where the Court said that a case is moot if it “no longer touch[es] the legal relations of parties having adverse legal interests.” (Defunis was another affirmative action case, found to be moot because Defunis had been conditionally admitted to the law school pending the resolution of the case, was now in his final semester, and would be allowed to graduate regardless of the outcome of the case. Thus he could no longer be said to have a legal interest “adverse to” the school’s interest in its AA program.)
A few additional points about mootness. First, the defendant cannot render a case moot through “voluntary cessation” — that is, by ceasing to engage in the offending conduct. Assume, for example, that Abigail Fisher was still attempting to apply for admission to UT, and so still facing the “discriminatory” policy. The university could not moot the case by voluntarily changing its policy. The reason for this rule is obvious — if it were not the rule, the defendant could always moot the case, get it dismissed, and then resume the offending conduct.
Second, cases which are “capable of repetition, yet evading review” will not be considered moot. The most famous example of the use of this exception to mootness doctrine is undoubtedly Roe v. Wade, where Justice Blackmun, writing for the majority, observed that
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.
Because pregnancy is a common occurence, yet short enough in duration that the woman in question will never be able to have their case heard through the appeals process before the pregnancy comes to term, the Court found that abortion cases should be seen as “capable of repetition, yet evading review.”
Finally, there are frequently class action cases in which the “named” or “lead” plaintiff — i.e., the plaintiff who represents the interests of the class members — has his case rendered moot by circumstances. Yet the class action suit does not thereby become moot, as long as there exist other class members whose individual cases are not yet moot. So, for example, if the lead plaintiff in a class action complaining of unconstitutional prison conditions finishes his sentence and is released, the class action is not rendered moot.
Ripeness, on the other hand, is the mirror-image of mootness. Where ripeness is at issue, it’s because the plaintiff has not yet suffered any harm, nor is he immediately threatened with harm. Notice that that second clause is very much the same inquiry as mootness; it’s just that in the mootness inquiry, we stipulate that the plaintiff was harmed (or in danger of being harmed) at some time in the past. When a case is not ripe, however, nothing has happened yet. All is speculative.
For example, in United Public Workers v. Mitchell, a number of federal employees challenged a statute making it illegal for federal workers to engage in political activities. The Court pointed out that, with one exception, none of the employees had yet violated the Act, nor did they have any concrete plans to do so. And they had not yet been threatened with any particular repercussions if they did so. The cases of most of the plaintiffs, therefore, were not yet ripe, and were accordingly dismissed. (One plaintiff, George Poole, had been charged with a violation of the statute, and an order for his dismissal had been lodged. His case was heard on the merits.)
Justice Douglas, however, felt that the other workers’ claims were not unripe. He, unlike the majority, felt that “[w]hat these appellants propose to do is plain enough”: they intended to take part in political campaigns. And, he noted, “[i]f they do what they propose to do, it is clear that they will be discharged from their positions.” (The fact that Poole had already been subject to a dismissal order certainly lends credibility to Douglas’s assertion.) Where an individual would like to engage in constitutionally-protected conduct, and is prevented from doing so by fear of immediate and concrete legal consequences, Douglas argued, the courts are well within their rights to hear the case and issue a declaratory judgment to protect that individual. Thus, in Douglas’s view, the case was completely ripe.
The basic test for ripeness, articulated in Abbott Laboratories v. Gardner, is a two-part inquiry. First, is there enough information yet for a court to make a meaningful determination? Second, will anyone suffer a hardship if the court does not act? If the answer to either of those questions is no, the case is probably not ripe yet. In Abbott Labs, the pharmaceutical companies (among other plaintiffs) challenged the validity of a regulation promulgated by the Food and Drug Commissioner, although the regulation had not yet been enforced. The Court ruled that the case was ripe, using the two-part test. No post-enforcement factual record was necessary, because the plaintiffs’ claim was one of pure statutory interpretation, not dependent on actual application. So the court did not need any additional information to act. And the pharmaceutical company was able to show that it would suffer hardship; it would incur substantial costs if it changed its manufacturing process to abide by the regulation, but if it did not change its process, it risked prosecution.
Despite the odd holding in Mitchell, a credible claim that a law will be enforced is probably enough to establish the second prong of the Abbott test in many cases. But it’s even better if you can show that this law already is enforced. In Holder v. Humanitarian Law Project, the case was deemed ripe because, although the HLP had not yet been prosecuted for materially supporting a terrorist organization, the DOJ had a well-established policy of enforcement. Interestingly, the HLP lost on the merits, but the Court held out the possibility that additional claims might be available post-enforcement, depending on the specific application of the law. Thus it may be that not all claims regarding a given set of parties and their legal relationships become ripe at the same time. Some claims require more factual information than others and therefore become ripe only after certain concrete occurrences.
So when will a party not be able to show hardship? Well, in Reno v. Catholic Social Services, the Court found that illegal aliens could not mount a pre-enforcement to challenge INS regulations interpreting a statutory scheme providing a path to citizenship. According to the Court, the regulation did not create any new penalties that might be applied to the aliens — rather, it created regulatory standards that stood as a potential barrier to receiving a benefit (the path to citizenship). Thus, the Court concluded, the aliens were not threatened with hardship, because they had not yet been denied the benefit.
Justice Stevens, in dissent, replied that the aliens were already suffering the hardship (living in a “shadow” society under “perpetual fear” of being arrested and deported), and the point of the statute was to ease that hardship. But my more basic question about the majority’s reasoning is why the pre-enforcement threat of penalties should be seen as a hardship, while the pre-enforcement threat of being denied a benefit should not. In neither case has the threatened thing actually come to pass. I suspect the answer is simply that the Court takes the possibility of government exercising punitive power over an individual more seriously than it takes the potential loss of some government largesse. This is not an unreasonable position, as far as it goes, though I think Justice Stevens makes a fair point about the extremity of the alien’s current position.