October Term 2020 and the specter of (a lot of) mootness

Recent discussions of the Supreme Court’s upcoming term have understandably focused on the implications of the death of Justice Ruth Bader Ginsburg — and the seemingly inevitable confirmation of Judge Amy Coney Barrett to succeed her. At least some of that commentary, in turn, has raised the possibility of the court being called upon to potentially resolve the presidential election, or at least high-profile cases relating to it.

But the election looms over the upcoming term in at least one other (less sensational) respect: the number of cases that could potentially be mooted before they are decided, especially if there’s a change in administrations come January 2021. Indeed, although mootness is always a possibility during terms featuring presidential transitions, there are more disputes with potential mootness problems in the pipeline for the upcoming term than was true four years ago (when no granted cases were mooted by the shift in administrations). Thus, with the justices set to add cases to their docket in the coming weeks, including after Tuesday’s long conference, one possibility is for the court to be strategic not just in which cases it grants and when, but in how it schedules arguments in these cases — perhaps setting some of the potentially moot-able disputes for arguments in March and April rather than January and February. At the very least, the specter of mootness helps to underscore how something as mundane as when a case is scheduled for argument can sometimes have substantive implications.

Of the cases already on the docket, one potential candidate for mootness is Department of Justice v. House Committee on the Judiciary — the dispute over the House’s attempt to obtain grand jury materials related to Special Counsel Robert Mueller’s investigation as part of impeachment proceedings against President Donald Trump. Even if the dispute isn’t already moot (given that the impeachment investigation in which the materials had been sought is a thing of the past), the House goes home on Jan. 3, 2021 — just over one month after the Dec. 2 oral argument. Although the case does not involve a subpoena (which would automatically expire on Jan. 3), there’s at least the possibility that, rather than resolve a complex inter-branch dispute, the justices might seize upon the intervening election of a new House of Representatives as grounds for vacating the decisions below and dismissing the government’s appeal.

But it’s the cases in the cert-petition pipeline in which mootness seems an even greater consideration. Consider, for example, Wolf v. Innovation Law Lab, the Trump administration’s appeal of lower-court rulings invalidating its “Migrant Protection Protocols” (known colloquially as the “Remain in Mexico” program). The petition is on the slate for consideration at the long conference on Tuesday. Assuming that the justices grant certiorari, the case would normally be on track for argument in January or February 2021. (Absent expedition, Supreme Court Rule 25 contemplates at least 115 days between a grant of certiorari and oral argument — 45 days for the opening brief, 30 days for a response, and 30 days for a reply that must be filed at least 10 days before the argument.)

But like many of Trump’s controversial immigration policies, it seems likely that a Biden administration would quickly reverse course on these initiatives. And because the lawsuit seeks only injunctive and declaratory relief, termination of the program would both functionally and formally moot the litigation challenging it. Thus, there’s a decent chance the case would be mooted before the justices could decide it — regardless of when it is argued. By deferring the argument until later in 2021, the court would allow for the possibility that the argument itself would become unnecessary. (An additional reason for potentially holding ILL is the impending decision by the U.S. Court of Appeals for the District of Columbia Circuit in Alder Cruz v. Department of Homeland Security, which raises both the same statutory questions as ILL and additional challenges that, if successful, would moot ILL.)

ILL is only one of multiple Trump administration petitions that the justices are set to consider at the long conference. Another petition with a decent chance of being granted that could potentially become moot is Azar v. Gresham, No. 20-37, arising out of the Department of Health and Human Services’ approval of an Arkansas work requirement for Medicaid recipients. The D.C. Circuit invalidated the federal government’s approval, and it is hardly beyond the realm of possibility that a new administration would rescind the approval rather than continue to contest the court of appeals’ invalidation.

The same can be said for another pending petition, Trump v. Sierra Club — in which the lower courts held that Trump acted unlawfully when he diverted military construction funds to help build his controversial border wall. The government’s petition in that case is slated for discussion at the court’s Oct. 9 conference. If it’s granted, that would put it in the ballpark for a February 2021 argument. And that policy, too, is likely to be reversed fairly quickly in a Biden administration — so that, as in ILL, the court would never have a chance to reach the merits regardless of when the argument is held. An additional complication in that case is the D.C. Circuit’s ruling on Friday in U.S. House of Representatives v. Mnuchin, holding that the House had standing to bring its own challenge to the same policy. That case might be one the justices would want to hear alongside Sierra Club, and it too could be mooted by the turnover of the House on Jan. 3.

And other examples abound. Indeed, one way or the other, Trump administration policies appear poised to take up a substantial chunk of the court’s merits docket, at least toward the latter half of the upcoming term. It is, of course, entirely possible that the court will end up having to resolve these cases on the merits if the president is re-elected. But scheduling arguments in these cases for March and April 2021, rather than January and February 2021, would in no way harm the court’s ability to decide them if necessary, and it would potentially spare the justices from significant wasted effort if not.