Mootness is not about politics

Mootness is not about politics
© Greg Nash

Chief Justice Roberts has drawn a sharp rebuke for condoning the Supreme Court majority’s April 27 decision refusing to take up a Second Amendment case. But the critique of the decision as politically motivated is deeply misguided — and potentially harmful — to the perceived legitimacy of the federal bench and the rule of law itself. The decision was not an “enormous abdication” of judicial prerogative, as some have irresponsibly claimed but, rather, a routine and proper refusal to take up an issue that had been rendered moot. 

In New York State Rifle & Pistol Association v. New York, the Court in a per curiam opinion (meaning there is no attributed author) effectively dismissed a case challenging a New York City handgun law, which had prevented handgun owners from carrying firearms to second homes or shooting ranges outside of the city. Recall that in District of Columbia v. Heller, the Court in 2008 recognized a Second Amendment right to own a handgun in the home for self-defense. The question raised in the New York State Rifle & Pistol Association case was whether that right extended to the transport of firearms outside of the home. 

The lower courts upheld the law. But while the case was pending before the Supreme Court, “the State of New York amended its firearm licensing statute, and the City amended the rule so that petitioners may now transport firearms to a second home or shooting range outside of the city, which is the precise relief that petitioners requested in the prayer for relief in their complaint.” The Court thus found the case moot.


In arguing against mootness, the petitioners claimed that it is still conceivable under the new law that “they may not be allowed to stop for coffee, gas, food, or restroom breaks on the way to their second homes or shooting ranges outside of the city.” The City responded that “those routine stops are entirely permissible under the new rule.” 

If it turns out that the City nonetheless decides to enforce the rule for routine stops in the future, the petitioners could file a new case. But for now, that scenario is entirely hypothetical. There is no concrete injury for the Supreme Court to remedy based on the allegations of the original complaint, which challenged a now-defunct law.

The Supreme Court reviews cases — just like courts of appeals. The job of any court on appeal is to review what a lower court did with the precise issue before it. In this case, that issue had totally changed. Whatever the lower court had said about the ordinance — which was no longer in effect by virtue of amendments to the law — became beside the point. The case clearly needed to be reframed at the lower court level, if at all, under the revised ordinance. Although there are exceptions to the so-called “mootness” doctrine, appellate courts routinely step away from cases when the underlying problem that was complained about has changed. The case gets remanded for further proceedings. 

Mootness serves a very important function in our system of separated government. It keeps courts out of the business of lawmaking, which belongs to the elected branches. Article III of the U.S. Constitution confines federal courts to resolving “cases” and “controversies”— that is, live disputes between the parties before it. It is the job of the legislature, by contrast, to identify hypothetical scenarios that need fixing and to pass prospective laws attempting to address those scenarios. Judges decide disputes that arose in the past and affect only the parties before the lawsuit — not the public in general.

In his dissent, Justice Alito takes pains to outline numerous hypotheticals to make his point that the case is not moot. But Justice Alito’s exercise only underscores what mootness is all about: Federal courts are not in the business of resolving hypotheticals. In this case, the actual dispute ended when New York changed the law — which is presumably a good result for the plaintiffs — leaving nothing for the courts to do.


To attack Chief Justice Roberts for joining his colleagues in refusing to craft prospective limits on New York gun laws from the bench in the absence of a live dispute is wrong as a matter of bedrock constitutional law. It also does gratuitous damage to the public’s perception of the court system. With few exceptions, judges work every day to resolve cases based on facts and law and not on politics and it’s important to underscore this reality so that the public can have confidence in our system of laws.

The majority reached the proper result in this case. It would be highly unusual for an appeals court to move forward with a case where the underlying pleadings do not accurately reflect the current facts and state of affairs.

Kimberly Wehle is a visiting professor of Law at American University’s Washington College of Law, and a member of an advisory consulting group on judicial independence sponsored by the Rendell Center for Civics & Civic Engagement and the Annenberg Public Policy Center of the University of Pennsylvania. She is the author of the book, “How to Read the Constitution—and Why.” Follow her on Twitter @kim_wehle