Mootness (Update)

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Constitutional litigation often takes place on two distinct planes. First, the parties disagree about whether government has wrongfully injured the plaintiff's liberty or property interests. Second, the subject matter of the litigation sets the stage for a larger legal and ideological debate. If some event ends the parties' disagreement about the plaintiff's injury, so that a judicial decision would have no consequences for the parties, the case is said to be moot. The question is whether the case may continue to serve as a vehicle for settling the larger debate.

In general, the Supreme Court has answered this question negatively. A relatively straightforward case of mootness was presented in Arizonans for Official English v. Arizona (1997). The voters of Arizona had narrowly approved a ballot initiative establishing English as the state's official language. The plaintiff, Maria-Kelly Yñíguez, was a state insurance claims manager who in her daily work spoke Spanish to clients who understood only Spanish. Worried that the new law would prohibit her from speaking any Spanish on the job, she sued state officials, claiming that the initiative violated the equal protection clause.

After the trial court ruled in her favor, Yñíguez resigned from state employment to take another job, thus mooting the case. Yet both Yñíguez and backers of the initiative urged the courts to settle the constitutionality of the " official english " law. The Supreme Court not only refused to allow the suit to go forward, but vacated all the proceedings in the courts below. Lacking a personal stake in the constitutionality of the initiative, Yñíguez no longer had a justiciable dispute against the state.

The Court sometimes uses the mootness rules to adjust the timing of controversial decisions. In defunis v. odegaard (1974), the Court refused to decide a challenge to affirmative action in law school admissions, even though the "capable of repetition, yet evading review" exception used the previous term in roe v. wade (1973) appeared to apply. After the issue had percolated for four years, the Court decided regents of university of california v. bakke (1978), brushing aside a weighty argument that the case was moot. In another dubious opinion, Boston Fire-fighters Union, Local 718 v. Boston Chapter, NAACP (1983), the Court found a challenge to affirmative action in public hiring moot, only to decide the same issue the next year in a case that seemed no less moot, firefighters local union no. 1784 v. stotts (1984).

In using the mootness doctrine to refine the timing of its controversial decisions, the Court has consciously or unconsciously followed a practice once urged by Professor alexander m. bickel. He argued that the Court should use the mootness, standing, ripeness, and political question doctrines in a frankly unprincipled manner so that proper timing would allow the Court to decide the merits of cases in a principled manner. Rather than hand down a decision when it would be especially divisive, the Court should wait until public opinion has matured to some degree.

History has yet to pronounce on the wisdom of this practice. Making unprincipled rulings on mootness grounds creates a tension with the Court's tradition of giving reasoned explanations for its decisions. Lawyers and lower court judges puzzle over technical-looking opinions that add up to little more than, "Better wait." Worse yet, unprincipled decisionmaking threatens the very public credibility that the Court seeks to protect.

Evan Tsen Lee


Bickel, Alexander M. 1986 The Least Dangerous Branch: The Supreme Court at the Bar of Politics, 2nd ed. New Haven, Conn.: Yale University Press.

Fallon, Richard H., Jr. 1984 Of Justiciability, Remedies, and Public Law Litigation: Notes on the Jurisprudence of Lyons. New York University Law Review 59:1–75.

Lee, Evan Tsen 1992 Deconstitutionalizing Justiciability: The Example of Mootness. Harvard Law Review 105:603–669.