Prof. Matthew Hall (my former civil procedure professor) has proposed a “partially prudential doctrine of mootness” in an effort to distinguish those moot cases that courts should dismiss from those moot cases which courts should still entertain. See Matthew I. Hall, The Partially Prudential Doctrine of Mootness, 77 Geo. Wash. L. Rev. 562 (2009). Under Professor Hall’s framework, courts should dismiss “issue moot” cases, in which the underlying issue has been irrevocably resolved, but should retain jurisdiction over “personal stake moot” cases, in which only the specific litigant’s personal interest in the case has evaporated. Id. at 566.
I think this formulation is right, and I am far from the most notable party to agree with it. See Killian v. Concert Health Plan, 742 F.3d 651, 673 (7th Cir. 2013) (Posner, J., dissenting). But I think that the doctrine is bolstered by another argument at the Supreme Court level, one that differentiates issue mootness at One First from issue mootness in the district or inferior appellate courts–the develop of mechanisms within SCOTUS and the Supreme Court bar that circumvent the policies underlying justiciability doctrines.
We understand justiciability’s necessity in two capacities–a constitutional capacity and a normative capacity. As a constitutional matter, Article III asks federal courts to entertain only cases or controversies. U.S. Const. art. III, § 2, cl. 1. We have interpreted this as a constitutional mandate that courts entertain only discrete cases with particularized stakes that come before them. See Muskrat v. United States, 219 U.S. 346, 351-52 (1911). We have provided prudential and normative justifications for this doctrine–the parties who litigate cases will litigate them more thoroughly with actual stakes, the underlying facts of the case provide a guidepost for courts to examine how a doctrine works in the real world, and the requirement to examine only cases or controversies prevents the courts from reaching out and deciding broad policy by fiat. See Warth v. Seldin, 422 U.S. 490, 508 (1975); see also Letter from John Jay to George Washington, The Correspondence and Public Papers of John Jay. Edited by Henry P. Johnston. 4 vols. New York and London: G. P. Putnam’s Sons, 1890–93.
All justiciability doctrines theoretically serve these ends. Thus, standing doctrine ensures that parties with a real interest litigate cases. Ripeness doctrine ensures that those parties are properly invested in a case before they bring it. And mootness ensures that the parties haven’t picked up their stakes and left town during the pendency of a lawsuit. Additionally, justiciability is supposed to ensure that the courts do not function as a super-political branch, reaching out to find cases to decide and usurping the legislative branches.
But the continued development of the Supreme Court and the Supreme Court bar has eroded at least part of the normative and prudential justification for requiring full compliance with justiciability doctrines during SCOTUS review. Undeniably, a fully-developed record is important, and justiciability doctrines carry full prudential force in the lower courts. Those lower courts are also required by statute and tradition to hear most of the cases that they hear, rendering concerns about selective application of judicial power less pertinent.
But the Supreme Court has honed its case selection to a fine art, and the advocates that routinely play in front of that Court have elevated their case selection and presentation to a science. First, the Supreme Court has petitioned the Congress (successfully) to strip almost all mandatory cases from its docket; certiorari grants now account for essentially every case the Court decides. Second, the justices pool their resources into a certiorari pool, ensuring that cert petitions receive a thorough review and that the Court can hunt for the cases it wants with more precision. Most importantly, the Supreme Court bar has honed its abilities–repeat players now have a much greater chance of getting a cert petition granted, and ideological players are able to advance issue-specific agendas with ever-greater precision. (Obviously, issue advocacy is not new. Thurgood Marshall and the NAACP did this quite well in the 1940s and 50s. But I would submit that the Supreme Court bar now is more ideologically diverse and more specialized). See Adam Liptak, Justices Offer Receptive Ear to Business Interests, N.Y. Times, Dec. 18, 2010. All of these factors come together in a Supreme Court that is presented with multiple opportunities to address ideological issues in perfectly-teed-up vehicles. It can reach out and make policy, and the Bar is talented enough to render any set of facts that the Court ideally desires. We should at least be honest about it.
The Supreme Court, like it or not, is not simply “confronting the cases that come to it.” Under these circumstances, the normative assumptions that underlie the reticence to hear personal-stakes-moot cases simply no longer exist at the SCOTUS level. There are many factors to recommend Prof. Hall’s partially prudential model, but I think this factor additionally cuts towards its adoption in the context of Supreme Court review.