Hypocrisy Charges Aren't Always a Double-Edged Sword: 2nd Amendment Mootness & Wisconsin Election Edition

by Michael C. Dorf

On Monday, the SCOTUS issued a 2-page per curiam order dismissing as moot a 2nd Amendment challenge to a NYC ordinance that had forbade the transport of licensed firearms from an owner's home to a shooting range outside the city. As the terse order in New York State Rifle & Pistol Assoc. Inc. v. City of New York explained, the city amended the ordinance and New York State amended its statutes in a way that provided the plaintiffs all they sought in their lawsuit. Thus, the request for declaratory and injunctive relief is moot. Citing prior practice, the per curiam left open the possibility that, on remand to the lower courts, the plaintiffs might be able to argue that the revised ordinance is also unconstitutional insofar as it forbids licensed gun owners from stopping for gas, food, coffee, or to use the restroom en route from home to a shooting range outside the city. The defendants deny that the new rule would apply so woodenly, but the SCOTUS order leaves the matter for development in the lower courts. The order also leaves to the lower courts the determination whether it is too late for the plaintiffs to amend their complaint to include a claim for damages; such a claim would not be mooted by the prospective repeal of the rule, insofar as its past application imposed compensable harm.

In a dissent joined by Justices Thomas and Gorsuch, Justice Alito argued that the case was not moot. He first contended that the new rule and law do not give the plaintiffs everything they sought, endorsing the plaintiffs' gas/food/coffee/restroom theory without even acknowledging, much less refuting, the majority's citation of the precedent for leaving such a question for remand. Justice Alito also gave a second rationale for his assertion that the case was not moot: the plaintiffs already asked for damages, he said. How so? Justice Alito wrote that "while the amended complaint does not expressly seek damages, it is enough that it requests '[a]ny other such further relief as the [c]ourt deems just and proper.' " The dissent goes on to contend that such a generic statement--which one finds in every civil complaint filed by a competent lawyer--suffices to avoid mootness, given the possibility of nominal damages (and a speculative claim of actual damages), notwithstanding the Court's admonition in a 1997 case that "a claim for nominal damages, extracted late in the day from [a] general prayer for relief and asserted solely to avoid otherwise certain mootness, [bears] close inspection."

Who's right about the relevance to mootness of a civil complaint's generic any-further-relief clause? If I were deciding the question on my own and writing on a clean slate, I would say the SCOTUS should rarely if ever dismiss a case as moot, because I generally dislike the application of strict rules of standing, ripeness, and mootness in the Supreme Court--which, as a practical matter, functions much like a European-style constitutional court and therefore ought, in my view, to suspend the fiction that it sits simply to resolve particular concrete cases and controversies. However, the Court isn't writing on a clean slate, and the majority appears to have applied the relevant mootness precedents more faithfully than Justice Alito's dissent.

Moreover, it is hard to take seriously the dissenters' solicitude for plaintiffs who include generic any-further-relief language in their complaints, given recent history, by which I mean the per curiam opinion that all of the NYS Rifle & Pistol dissenters joined in the Wisconsin election case just 3 weeks earlier. Thus, after reading the NYS Rifle & Pistol dissent, on Monday I tweeted: "Alito, Thomas & Gorsuch dissent from today's 2d Am mootness ruling because the complaint had 'any further relief' request but 3 weeks ago voted to kill WI voters for failure to ask specifically for relief from nonexistent law, despite same language in complaint. Seems backwards."

But wait. If Justices Alito, Thomas, and Gorsuch are hypocrites for thinking that a complaint's generic any-further-relief clause avoids mootness for gun rights plaintiffs but doesn't permit relief for voting-rights plaintiffs, does that imply that Justices Ginsburg, Breyer, Sotomayor, and Kagan--who voted with majority in NYS Rifle & Pistol but dissented in the Wisconsin election case--are also hypocrites? The answer is no, for three principal reasons.

(1) The majority in the Wisconsin election case said that the district court lacked the authority to extend the deadline for mailing in absentee ballots in part because the "plaintiffs themselves did not even ask for that relief in their preliminary injunction motions." Yet, as I explained in Verdict column, the dissenters were rightly baffled by the majority's invocation of this supposed failure, because Wisconsin law does not contain a mailing deadline, only a receipt deadline (as Marty Lederman elaborated in point 5 here). That's why my tweet refers to a "nonexistent law" that the Wisconsin plaintiffs failed to challenge.

There is nothing hypocritical or inconsistent about thinking, on one hand, that plaintiffs don't need to challenge a nonexistent law in order to secure relief that would vitiate that nonexistent law if it existed, and, on the other hand, that a case is moot if plaintiffs have secured all the relief they specifically requested, notwithstanding the fact that their original complaint included a generic any-further-relief clause that could be invoked to add an eleventh-hour claim for damages. The two positions have nothing to do with one another and thus aren't in any tension at all.

(2) In any event, the dissenting justices in the Wisconsin case--i.e., the 4 Democratic appointees--did not in fact invoke the generic any-further-relief clause in response to the majority's quasi-waiver argument. Instead, assuming arguendo a requirement that the plaintiffs specifically seek extension of the nonexistent mailing deadline, Justice Ginsburg wrote for the dissenters that "the plaintiffs specifically requested that remedy at the preliminary-injunction hearing," a point the majority completely ignored. The suggestion that the any-further-relief clause also could have rebutted the majority's quasi-waiver argument was mine in the Verdict column. (Note: I refer to the argument as sounding in merely "quasi-waiver" because the Wisconsin election case per curiam disclaims that it is making a waiver point, but it is hard to see the point's relevance otherwise; thus I agree with Justice Ginsburg's contention that the Wisconsin election per curiam "suggests a problem of forfeiture.")

(3) As a general matter, it is possible for one side but not the other to a dual controversy to be hypocritical, as a hypothetical example illustrates. Suppose that Case 1 presents the question whether, in the absence of extenuating circumstances, a will can be validly witnessed by electronic signature. Let's imagine that Judges A says yes but Judges B and C say no. Now suppose that Case 2 presents the question whether a will can be validly witnessed by electronic signature during a public health emergency that includes a quarantine. Judge B says yes, but Judges A and C say no. Judge C pretty clearly isn't a hypocrite (although she might be cruel), because Judge C thinks that an electronic signature is never a valid way to witness a will. Judges A and B are a little more complicated. Let's consider them in turn.

It's pretty clear that Judge A is a hypocrite, is it not? Judge A allows electronic signatures in Case 1, when an in-person signature would not be especially burdensome, but not in Case 2, when it would be dangerous. That's backwards.

Crucially, however, what makes Judge A a hypocrite is not the fact that Judge A votes to allow electronic signature in one case but not the other; it's the particular juxtaposition of those cases. By contrast, Judge B's votes are perfectly consistent, in the sense that there's a straightforward and sensible principle that reconciles the two votes: In-person signature is more reliable and thus preferred, but that preference should give way to the overriding interest in health and safety, and so electronic signature should be allowed when a quarantine makes in-person signature unsafe.

Let's map the foregoing schematic onto the Supreme Court. Judge C is pretty clearly like Chief Justice Roberts and Justice Kavanaugh--who voted with the majority in both the Wisconsin election case and NYS Rifle & Pistol. Their Wisconsin election case votes reveal them to be cruel (as confirmed by the dozens of voters and poll workers who have since tested positive for COVID-19), but they did not contradict their position in NYS Rifle & Pistol.

Whether to characterize the other groups of Justices as more like the hypocritical Judge A or the sensible Judge B depends on whether one thinks the plaintiffs' inclusion of a generic any-further-relief clause is more salient in NYS Rifle & Pistol or in the Wisconsin election case--or at least would be if we assume, contrary to points (1) and (2) above, that the Democratic appointees needed to rely and relied on that clause in their Wisconsin election case dissent.

It is probably impossible to completely separate evaluation of the hypocrisy charge from evaluation of the merits. One could imagine some arguments for the relevance of an any-further-relief clause that lead to a conclusion of no-waiver in the Wisconsin election case but waiver and thus mootness in NYS Rifle & Pistol. Reliance on those arguments would acquit Justices Ginsburg, Breyer, Sotomayor, and Kagan of a hypocrisy charge. Meanwhile, at least in theory one could also imagine other arguments for the relevance of an any-further-relief clause that lead to a conclusion of waiver in the Wisconsin election case but no-waiver and thus no mootness in NYS Rifle & Pistol. Reliance on these other arguments would acquit Justices Thomas, Alito, and Gorsuch of the hypocrisy charge. So it's possible, at least in theory, that each group is like Judge A, each group is like Judge B, or one group is like Judge A and the other group like Judge B (or vice-versa).

That analysis suffices to show that my accusation of hypocrisy on the part of Justices Thomas, Alito, and Gorsuch does not necessarily implicate Justices Ginsburg, Breyer, Sotomayor, and Kagan in hypocrisy as well. However, it does not prove the core charge. Is it possible that Justices Thomas, Alito, and Gorsuch had in mind some principle that explains why the any-further-relief clause vitiated mootness in NYS Rifle & Pistol but did not undercut the quasi-waiver argument in the Wisconsin election case? Sure, it's possible, but two considerations lead me to think it's unlikely.

First, nowhere does Justice Alito offer a principle that reconciles the juxtaposition of the two decisions. (This criticism does not apply to Justice Ginsburg, because, as noted above in (2), she didn't rely or even mention the any-further-relief clause in her Wisconsin election case dissent.)

Second, and more importantly, the stakes are backwards. As a consequence of failing to credit the any-further-relief clause in the Wisconsin election case, the per curiam opinion that Justices Alito, Thomas, and Gorsuch joined reversed the grant of preliminary injunctive relief and thus put people to the choice of risking their lives or forgoing their right to vote. By contrast, the only consequence of the majority's failure to credit the any-further-relief clause in NYS Rifle & Pistol is that if the plaintiffs in that case want damages for the burden that the NYC ordinance placed on them while it was in effect, they must now make their argument for such damages in the lower courts. For Justices Alito, Thomas, and Gorsuch, immediate access to damages for denial of the ability to get to a shooting range is apparently more important than not being forced to choose between voting and a potentially grave health risk. As I tweeted: "Seems backwards."

Now, might one say that the stakes in  NYS Rifle & Pistol were higher, because mooting the case delayed the Court's ability to resolve important questions about the scope of the 2nd Amendment? Perhaps, but Justice Alito specifically disclaims that sort of rationale. He grudgingly acknowledges at the outset: "If the Court were right on the law, I would of course approve" of the mootness disposition, notwithstanding his eagerness to strengthen the rights of gun owners. Thus, the resulting delay until a new 2nd Amendment case arrives on the Court's docket is not the sort of consideration that Justice Alito--by his own admission--can count in the mootness calculus.