As was reported earlier, the Supreme Court has punted today in NYSR&PA v City of New York, finding in a short, unsigned per curiam opinion that New York’s last-minute gamesmanship rendered the case moot. At the same time, the Court indicating that on remand, the plaintiffs could raise the issue of whether they would be allowed to amend their pleadings to assert additional claims for relief.
As Justice Alito (joined by Thomas and Gorsuch) pointed out in a powerful dissent, while the last-second change in the law gave the plaintiffs most of what they sought, it did not give them everything that they sought (or could have obtained) in their lawsuit. Thus under well-settled Supreme Court precedent, the case was not moot.
(The per curiam opinion did not even attempt to address the precedent Justice Alito cited. Indeed, by acknowledging that the plaintiffs can raise issues of their entitlement to additional relief on remand, the majority’s finding of mootness truly makes no sense from a legal perspective.)
For example, as Alito pointed out, in this kind of civil rights litigation one of the key forms of relief you are entitled to seek is for attorneys fees if the lawsuit provokes a voluntary change of the law being challenged. Had New York City changed the law shortly after the plaintiffs filed suit, the plaintiffs could and likely would have sought attorneys fees under the theory that it was their action of challenging the law that caused the requested change.
But here, despite putting the plaintiffs to huge expense fighting this case for years — literally all the way to the Supreme Court — the City of New York is allowed to unilaterally cut off such a claim for substantial attorneys fees by a last-second tactical maneuver.
As I indicated in an earlier write-up of this case, the liberal wing of the Court may well rue this decision, as it may now be used to deny such relief in many other civil rights cases that are near and dear to their hearts.
Justice Alito also decried the Court blessing what was transparent gamesmanship designed to thwart Supreme Court review of the New York City law. Similar to arguments made previously by TTAG commentators, he wondered where that could go:
Or take this example. A State enacts a law providing that any woman wishing to obtain an abortion must submit certification from five doctors that the procedure is medically necessary. After a woman sues, claiming that any requirement of physician certification is unconstitutional, the State replaces its old law with a new one requiring certification by three physicians. Would the court be required to dismiss the woman’s suit? Suppose the court, following the precedent set by today’s decision, holds that the case is moot, and suppose that the woman brings a second case challenging the new law on the same ground. If the State repeals that law and replaces it with one requiring certification by two doctors, would the second suit be moot? And what if the State responds to a third suit by enacting replacement legislation demanding certification by one doctor? Mootness doctrine does not require such results. A challenge to an allegedly unconstitutional law does not become moot with the enactment of new legislation that reduces but does not eliminate the injury originally alleged. And that is the situation here.
Justice Alito went on to review the New York laws under both the “history, tradition, and text” and heightened scrutiny evaluations (note that Justice Thomas did not join in the portion of the dissent evaluating the New York laws under heightened scrutiny, which perhaps portends that he is in favor of the “history, tradition, and text” test favored by Kavanaugh and Gorsuch).
To no one’s surprise Alito found that the New York laws violated the Second Amendment under either evaluation. Of particular interest, he completely trashed the “evidence” on which New York City purported to justify the need for the law in the first place (a justification that they conveniently abandoned at oral argument).
In a concurrence, Justice Kanavaugh indicated that he joined in the decision to dismiss the appeal as moot (which, given his opinions in other standing cases, is a surprise, but not a complete shock), but left little doubt as to where he stands on Second Amendment cases:
I also agree with JUSTICE ALITO’s general analysis of Heller and McDonald. Post, at 25; see District of Columbia v. Heller, 554 U. S. 570 (2008); McDonald v. Chicago, 561 U. S. 742 (2010); Heller v. District of Columbia, 670 F. 3d 1244 (CADC 2011) (Kavanaugh, J., dissenting). And I share JUSTICE ALITO’s concern that some federal and state courts may not be properly applying Heller and McDonald. The Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court.
So, where does this leave us? There are at least twelve Second Amendment cases currently pending before the Supreme Court, including challenges to Massachusetts, New Jersey, and Maryland “may issue” licensing systems, the California “microstamping” law, and various state MSR bans.
There are four Justices (Thomas, Alito, Gorsuch, Kavanaugh) who are unambiguously on record as wanting to take up another Second Amendment case. As all of them have pointed out in many dissents, they are not amused by lower courts thumbing their noses at Heller and McDonald.
By the same token, there are four Justices (Breyer, Ginzburg, Kagen, Sotomajor) who would clearly reverse Heller if given the chance.
The question thus becomes, “What will Roberts do?”
Given that he chickened out in the Obamacare decision and appears to have chickened out or been intimidated into finding the NYSR&PA case moot, I am not particularly sanguine. The tell will be what happens in the very near future on all the Second Amendment cases being “held” by the Supreme Court.
There are the requisite four votes needed to grant cert on one or more of them, as Justice Sotomayor seemed to resignedly admit at the NYSR&PA oral argument. If we start seeing a slew of cased being “cert denied” in the near future, then it probably portends that Roberts has become the new Kennedy, and thus the pro-2A wing of the Court won’t vote to grant cert on a 2A because they aren’t sure Roberts won’t chicken out once again.
That would, of course, put us right back in the Kennedy era Mexican standoff that facilitated the nose-thumbing disrespect shown for Heller and McDonald by so many lower courts.
My prediction: unless we’re back to a standoff, I’ll predict we’ll see one of the challenges to the New Jersey laws teed up next (Rogers v. Grewal, Cheeseman v. Polillo, or Ciolek v. New Jersey). My personal longer-shot favorite: the Fifth Circuit decision in Mance v. Barr. That case deals with the federal ban on sales of handguns to out-of-state residents. Given the current gridlock in Congress, that case can’t be mooted by a last-minute change in the law and, like the laws in NYSR&PA, is pretty much recognized as indefensible under any serious level of scrutiny.
UPDATE: From Chuck Michel, attorney and president of the California Rifle & Pistol Association: