A Mootness Dismissal Illustrates the Supreme Court's Split Personality: Is it a Constitutional Court or a Court of Error?

By MICHAEL C. DORF
Wednesday, Jun. 06, 2007

By the time the current Supreme Court Term ends later this month, the Justices will have handed down a number of blockbuster decisions. Yet this Monday's ruling in Claiborne v. United States surely will not make anybody's "Top 10" list--and for seemingly good reason. The unsigned two-sentence order simply dismisses the underlying appeal as moot because the petitioner died last week.

That disposition of the Claiborne case reveals a deep tension in the Justices' understanding of the power they wield. On one hand, the Supreme Court frequently invokes doctrines of mootness, standing, ripeness, and other principles of justiciability--rules and standards governing when it is appropriate for a court to decide or refrain from deciding a given issue--in order to limit its own jurisdiction, as it did in Claiborne. According to the Court, because the Constitution's Article III only authorizes federal courts such as itself to resolve "cases" and "controversies," it has no power to decide anything if the ruling won't make a concrete difference in a particular dispute.

On the other hand, the Court also frequently states that it cannot devote its scarce attention to simply correcting alleged errors by the state courts and the lower federal courts--even though such errors routinely occur in the context of cases and controversies, and no one disputes that their resolution will make a difference to the parties to the dispute. The Justices have nearly complete control over their own docket and they exercise their discretion by choosing not those cases that seem ripe for error-correction, but those that present issues of national importance. In other words, the Justice select their cases for reasons having almost nothing to do with the concrete difference the result might make in the particular dispute.

These requirements--that cases must both be concrete and transcend their own concreteness--are, to say the least, in some tension. They are not, however, inevitable. Other constitutional democracies freely permit their constitutional courts to resolve abstract constitutional questions. Except insofar as doing so is absolutely prohibited by Article III, the U.S. Supreme Court would do well to follow suit.

The Underlying Issue in Claiborne

The issue presented by the Claiborne case was an important one. Claiborne pleaded guilty to drug charges and was eligible for a 37-month prison sentence based on the Federal Sentencing Guidelines. The federal district judge thought this was an inappropriately harsh penalty, in light of Claiborne's youth, clean prior record and the improbability (in the judge's view) that he would commit future crimes. After the district judge sentenced Claiborne to only 15 months in prison, the government appealed to the U.S. Court of Appeals for the Eighth Circuit, which reversed the district court's ruling. A district judge cannot depart downward from the Guidelines range, the Eighth Circuit said, absent a finding of extraordinary circumstances. The factors the district judge invoked had already been taken into account in the Guidelines, and thus were not extraordinary.

The case clearly had implications beyond the length of Claiborne's own prison sentence because it turned on the answer to an important question with which the lower federal courts have wrestled: To what extent does the Supreme Court's 2005 decision in United States v. Booker expand the discretion of federal district judges to depart downward from Guidelines sentencing ranges?

In Booker, the Supreme Court held that the mandatory character of the Sentencing Guidelines, as written, violated the Sixth Amendment right to jury trial because it gave to a judge, rather than a jury, the power to make factual determinations essential to calculating a prisoner's sentence. As a remedy, the Supreme Court instructed the lower federal courts to treat the Guidelines as advisory, rather than mandatory. The question in Claiborne was the extent to which a district judge, in exercising sentencing discretion under Booker, is still bound to follow the Guidelines in finding extraordinary circumstances to justify a downward departure from the Guidelines range.

Had the Justices resolved the Claiborne case on the merits, it would have sent a useful signal to the lower federal courts, which have struggled mightily to interpret Booker faithfully. No doubt, another case will eventually provide the Court with an opportunity to resolve the issue, but in the meantime, thousands of hours of attorney time (by the government and defense counsel) will be wasted arguing over the issue. Much worse, if it turns out that the Court ultimately vindicates the position of the district court in Claiborne, individual prisoners whose sentences should have been treated as complete will languish in prison because district judges will have wrongly had their discretion to lessen those sentences, to below what the Guidelines prescribe, constricted.

Thus, the mootness dismissal of Claiborne is hardly costless.

Capable of Repetition, Yet Evading Review?

Might the Supreme Court have resolved the Claiborne case, despite the petitioner's death, under the well-recognized exception to the mootness doctrine for cases that are "capable of repetition yet evading review?" Probably not.

Every kind of case is, as a literal matter, capable of repetition, but to qualify for the mootness exception, there must be some reason to think that cases will continually become moot before the legal system has had time to issue a final ruling. Litigation challenging abortion laws presents an archetypal case for the exception: Because pregnancy only lasts nine months, while litigation often lasts for years, by the time the Supreme Court or even an appeals court has had a chance to fully consider the merits of a constitutional challenge, the pregnancy will have ended (either in an abortion or a live birth). As a result, abortion litigation has been held to satisfy the capable-of-repetition-yet-evading-review exception to mootness doctrine (and also to justify granting third-party standing to doctors, in such cases, for similar reasons).

Claiborne's case did not have the same built-in likelihood of becoming moot before litigation ran its course. Given Claiborne's youth--he was 23 when he died last week--it was hardly likely that he would die before the Supreme Court resolved his case.

Still, one might think that sentencing cases should qualify for a mootness exception for a different reason: because the defendant may finish his sentence before his appeal is finally decided. In fact, however, federal courts do not permit a prisoner who has completed serving his time to challenge the duration of that sentence, unless the sentence length has ongoing collateral consequences, such as for probation conditions.

Accordingly, the Supreme Court correctly applied its own mootness rules in dismissing the Claiborne case. The problem, however, is that those rules make little sense as applied to the Court itself.

The Difference Between the Lower Federal Courts and the Supreme Court

As I explained in a column posted before and a column posted after the recent decision in the global warming case, Massachusetts v. EPA, the Supreme Court purports to derive its justiciability doctrines--including mootness and standing rules--from the case-or-controversy language of Article III. In those columns, I criticized the Court for attributing to the Constitution unnecessary limits of its own making. Here, I would add an additional criticism: Even if existing justiciability doctrines can be justified for the lower federal courts, they make less sense for the Supreme Court itself.

Current standing and mootness doctrines do not distinguish between the lower federal courts and the U.S. Supreme Court. All federal courts are limited to deciding "cases" and "controversies," the logic goes, and so whatever limits exist for lower federal courts also exist for the Supreme Court. Yet there are important functional reasons to distinguish these courts.

Absent some limits on standing, mootness, and "advisory opinions" more generally, the lower federal courts could be overwhelmed with filings. As it is, they can barely keep up with their caseload. One partial solution would be to cut back on the "war on drugs," which accounts for a substantial portion of the criminal docket. However, the state of domestic politics makes this option largely unavailable.

Another approach would be to increase the size of the federal judiciary, but this too seems unlikely. Federal judges already believe they are substantially underpaid. Talented lawyers can nonetheless be enticed to serve as federal judges by appeals to patriotic duty, the inherent interest of the work, and the prestige of the job. Creating substantially more federal judgeships would diminish the prestige of each position, and thus make it even harder to find highly-qualified people to serve.

Accordingly, at least in the short run, the lower federal courts need filters to keep cases to a manageable number, and justiciability doctrines are among the filters.

The Supreme Court, however, is in a very different position. With nearly complete discretion over what cases it hears, it can choose those it deems most important. Thus, even as the total filings in U.S. courts have increased over the years, the Court's docket has shrunk. Last year, it resolved only 81 cases with full opinions and this year it will produce only about 70, down from about twice that many just two decades ago.

A Constitutional Court or a Court of Error?

In addition to costly dismissals on mootness grounds, justiciability doctrine prevents the Supreme Court from performing its important task of settling the law in other ways. Countries that have adopted the practice of judicial review within the last century have typically given to their highest constitutional court the power to hear cases that our Supreme Court does not take.

Consider, for example, an important decision last year by the German Constitutional Court that struck down an anti-terrorism provision empowering the minister of defense to order the German military to shoot down a hijacked civilian airplane. In the United States, the case never could have been heard, because no prospective passenger would be able to demonstrate a sufficient likelihood of being aboard a hijacked plane to qualify for standing and thus become a plaintiff who could file the case. In the U.S., then, the issue could come to court only after the fact, certainly too late for any actual hijacked passengers.

To be sure, the German Constitution expressly grants the Constitutional Court greater latitude to decide hypothetical cases than does the U.S. Constitution, but text alone cannot explain the U.S. Supreme Court's insistence on strict justiciability rules. The hijacking case was considered a concrete rather than an abstract case under German law.

Moreover, even courts within the same common-law tradition as the United States have taken a very broad view of justiciability. For example, the Supreme Court of India has been extremely proactive in addressing citizen complaints, even to the point of treating newspaper letters to the editor and postcards to the Court from interested citizens as sufficient to start a constitutional case.

Our Supreme Court need not go that far, nor should it. After all, given the justiciability limits on lower federal courts, it will often be impossible for a case presenting some important issue to make it into the federal system in the first place.

However, cases originating in state courts--which often have looser justiciability rules--can also make it to the Supreme Court, and wherever a case originates, once it makes it to the Supreme Court, there is little reason to insist on adhering to the strict letter of all the limits designed for the lower federal courts. The Supreme Court is not, after all, a court of error.


Michael C. Dorf is the Isidor & Seville Sulzbacher Professor of Law at Columbia University. He is the author of No Litmus Test: Law and Politics in the Twenty-First Century and he blogs at www.michaeldorf.org.

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