The Mootness Doctrine

Article III of the Constitution delineates the powers of the federal judiciary. Indeed, there is much to analyze within Article III, from the types of cases federal courts can take to the creation of the Supreme Court. The mootness doctrine, as outlined in Article III of the Constitution, restricts the scope of judicial review by federal courts. Federal courts are authorized to intervene only in active disputes, and the interpretation of this mandate has historically been the prerogative of the Supreme Court.

The Mootness Doctrine and the U.S. Constitution

The mootness doctrine comes from Article III, Section 2, Clause 1 of the Constitution. The so-called "cases or controversies clause" states the following:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State, between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

What is the Mootness Doctrine?

The mootness doctrine, along with the three additional justiciability doctrines, (ripeness, standing, and political question) limits federal courts' jurisdiction. The Supreme Court lays out these doctrines in Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. (2000).

Specifically, the mootness doctrine limits the judicial review of federal courts to "actual controversies." For examples, see Kingdomware Techs., Inc. v. United States (2016) and Already, LLC v. Nike, Inc. (2013). 

Over time, the Supreme Court altered its mootness doctrine's interpretation. However, according to the United States Library of Congress, its current interpretation is if the plaintiff loses a "personal stake" in the case's outcome at any point, the court must dismiss the case as moot. See the Supreme Court's decisions in Campbell-Ewald Co. v. Gomez (2016) and Genesis Healthcare Corp. v. Symczyk (2013) for more on this approach.

Examples of Mootness

The Supreme Court's interpretation of the mootness doctrine is exemplified by two cases: DeFunis v. Odegaard (1974) and Roe v. Wade (1973).

DeFunis v. Odegaard

In DeFunis, the plaintiff sued the University of Washington Law School. He alleged the school's admissions process violated his civil rights by denying him admission due to his race. 

A trial court ordered the law school to admit the plaintiff. The law school appealed the order, but the plaintiff attended the school. Eventually, the case reached the Supreme Court for review. By then, the plaintiff was in his last semester of law school and was on track to graduate. 

On review, the Supreme Court held that the case was moot. Specifically, the Court noted that the plaintiff would graduate regardless of its decision regarding the school's admission policy. Therefore, the plaintiff no longer had an actual controversy against the school - it had admitted him, and he would graduate. Additionally, no matter how the Court decided the case's merits, it could not grant the plaintiff any relief that would have any effect.

Roe v. Wade

You are probably aware of the Supreme Court's ruling in Roe, a pivotal case where a pregnant woman contested the constitutionality of a Texas state law that outlawed abortions, except when medically necessary.

The Court held the Constitution's right to privacy also provided a right to abortions. However, before the Court reached the case's merits, it had to decide whether it had become moot. 

The appellees in the case argued that once Roe's pregnancy terminated naturally — as it did before the Supreme Court granted review — the case was moot. 

The Supreme Court's general rule at that time (and to this day) was that the active controversy had to exist not only at the time the plaintiff filed their lawsuit but also throughout the entire litigation process. The following cases further illustrate this rule:

• United States v. Munsingwear, Inc. (1950)

• Honig v. Doe (1988)

• Lewis v. Cont'l Bank Corp. (1990)

Despite these circumstances, the Supreme Court determined that Roe's case qualified as an exception to the mootness doctrine. The opinion began by noting that the average gestation period of pregnancy (266 days) was typically shorter than the usual appellate process. Writing for the majority, Justice Blackmun wrote:

"If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied. Our law should not be that rigid."

The Court then held that pregnancy falls under the "capable of repetition, yet evading review" exception to the mootness doctrine. Therefore, it held that the case was not moot, and it could reach its merits.

Why Does the Mootness Doctrine Exist? 

The mootness doctrine is important for the purpose of the separation of powers. When the Framers created the Constitution, they created three branches of government:

• The Legislative Branch (Article I)

• The Executive Branch (Article II)

• The Judicial Branch (Article III)

The Constitution enumerates each branch's specific powers, thereby defining and limiting their roles in government. Each branch's respective powers also act as checks on the other branches. 

The judiciary's role, generally, is to adjudicate legal disputes. As described above, Article III limits judicial review to "cases" or "controversies." Supreme Court precedent interpreting Article III also prohibits courts from issuing so-called advisory opinions, i.e., opinions that interpret the legality of an action or law in the absence of a legal dispute regarding it. 

To summarize, if the plaintiff fails to meet the case-or-controversy requirement, the case becomes moot as there is nothing left for the courts to adjudicate. Generally, courts are obliged to dismiss such cases because they lack the constitutional authority to render decisions on a non-existent controversy.

Evolution of the Mootness Doctrine

The Supreme Court's interpretation of the mootness doctrine has evolved over the years. This section describes several landmark cases involving the doctrine of mootness.

Mills v. Green

The Supreme Court first considered the mootness doctrine in-depth in Mills v. Green (1895). 

There, South Carolina passed a statute calling for a convention to revise the state's constitution. The law called for an election to select the delegates who would revise it. A citizen sued the county supervisor of registration, alleging that the statute unconstitutionally "abridg[ed], impede[ed], and destroy[ed] the suffrage of citizens of the state and of the United States." Specifically, he argued that the law prevented him from voting for the delegates. 

By the time the Supreme Court reviewed the case, the state had already held the delegate election, and the convention had begun. The Supreme Court determined the plaintiff's case was moot and dismissed the case. 

The Court noted that its role was to issue judgments regarding "actual controversies" and "not to give opinions upon moot questions or abstract propositions." Because the election occurred and the convention had already begun, the Court could no longer grant the plaintiff "any effectual relief whatever" because it could not travel back in time and make him eligible to vote. 

Mills was the first time the Supreme Court held that events may occur during a lawsuit to render it moot. The Court did not, however, specifically base its holding on Article III's cases or controversies clause. Therefore, it did not specifically decide whether the Constitution prevented it from exercising jurisdiction or whether prudential considerations did. 

Liner v. Jafco

The Court did not explicitly acknowledge that Article III prohibited jurisdiction over moot cases until its decision in Liner v. Jafco (1964). 

The case involved the petitioner, Liner, picketing a non-union construction site in Tennessee. Liner picketed the site with a sign indicating the site's contractor did not contract with the Chattanooga trades union. The construction workers stopped working soon after Liner started picketing. 

A general contractor, Jafco, obtained an ex parte injunction prohibiting Liner from picketing the site. To obtain the injunction, Jafco had to file a bond that would indemnify any petitioner "if the injunction was 'wrongfully' sued out." Once they filed the bond and obtained the injunction, Liner quit picketing, and construction resumed. 

Liner and two unions sought an order to dissolve the injunction in state court. The lower court denied their request and made the injunction permanent. Liner and the unions appealed the decision. While the appeal was pending, the contractors/appellees finished the construction. The state appellate court ruled, among other things, that the case was moot because the contractors completed the construction project.

The U.S. Supreme Court ultimately granted a writ of certiorari in the case. The Court held that the respondents' completion of the construction did not render the case moot. 

Specifically, the Court noted that the petitioners "plainly ha[d] 'a substantial stake'" in the case due to the bond Jafco filed, which would repay them "if the injunction was 'wrongfully' sued out." Whether the case was "wrongfully sued out" depended on the Court's decision as to whether the state court properly issued the injunction. Therefore, they still had a stake in the case even though the respondents had completed the construction.

Modern Mootness Doctrine Jurisprudence

Liner stands for the idea that a case is not moot so long as a party retains a "substantial stake" in a potential judgment. The Court relied on Liner in subsequent cases involving the mootness doctrine, including the following:

• The mootness doctrine acts as a bar on a court's judicial power where no case or controversy exists. Federal courts cannot adjudicate moot cases; therefore, they cannot render a judgment even with all parties' consent.  (Sosna v. Iowa (1975)).

• Federal courts must decide whether a case is moot even if the parties do not raise the issue. (United States v. Juvenile Male (2011) (per curiam); St. Paul Fire & Marine Ins. Co. v. Barry (1978); North Carolina v. Rice (1971) (per curiam)).

• Mootness is a threshold issue for any case. Therefore, courts must decide questions of mootness before addressing the merits of the claims. 

These and other cases have clarified the modern mootness doctrine. If the Court determines that there is "no reasonable expectation that the alleged violation will recur" and intervening events eliminate the "effects of the alleged violation," the case is moot. (City of Erie v. Pap's A.M. (2000); Cty. of Los Angeles v. Davis (1979)).

However, if the court can still grant some relief, as opposed to the plaintiff's specific requested relief, the court will not dismiss the case as moot. This builds on the Court's holding in Liner — the court will only dismiss a case if the plaintiff entirely loses their "personal stake."

How Courts Deal with Moot Cases on Appeal

As noted above, courts must generally dismiss moot cases. However, the Supreme Court has created several rules regarding how to handle such cases while an appeal is pending before a Circuit Court of Appeals. 

Typically, if a case becomes moot on appeal, the appellate court must reverse or vacate the district court's judgment. It will then remand the case with instructions for the lower court to dismiss it.

The Court has held, further, that it will vacate a case "only when mootness occurs through 'happenstance' — that is, 'circumstances not attributable to the parties' — or 'the unilateral action of the party who prevailed in the lower court.'" See Arizonans for Official English et al. v. Arizona et. al. (1971) and U.S. Bancorp Mortg. Co. v. Bonner Mall P'ship (1994) for examples.

The Supreme Court has since clarified Munsingwear and created exceptions to it, including the following:

• If a case becomes moot due to an act of Congress or a state legislature changing a law, courts can remand it to the lower court. This allows the parties to amend their pleadings. (U.S. Dep't of Treasury v. Galioto (1986); Diffenderfer v. Central Baptist Church of Miami, Florida, Inc. (1972)).

• When the parties settle their case while an appeal is pending, the courts typically do not vacate the lower court's judgment. Instead, the Court decides not to review the case, even though it is technically reviewable. 

• If the plaintiff decides to stop litigating a case, the Court will dismiss it with prejudice. (Deakins v. Monaghan (1988)).

The Supreme Court also has different procedures depending on whether the case that became moot was in state or federal court. If a state court case becomes moot on appeal to the Supreme Court, the Court will dismiss the case and leave the state court's judgment "undisturbed."

Exceptions to the Mootness Doctrine

The Supreme Court has noted several exceptions to the mootness doctrine. These include the following:

• The possibility of collateral legal consequences

• Conduct capable of repetition, yet evading review

• Voluntary cessation of the challenged conduct

The Court also has special mootness considerations concerning civil, criminal, and class action actions. Read FindLaw's article on Exceptions to the Mootness Doctrine for more information.