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Supreme Court dismisses major 2d Amendment case as ‘moot’

Supreme Court dismisses major 2d Amendment case as ‘moot’

Alito, Gorsuch and Thomas Dissent: “By incorrectly dismissing this case as moot, the Court permits our docket to be manipulated in a way that should not be countenanced….”

https://www.supremecourt.gov/about/justices.aspx

The U.S. Supreme Court has dismissed as “moot” a lawsuit challenging a New York City gun regulation, thus disposing without a substantive ruling of the first major 2nd Amendment case the court had taken in over a decade, New York State Rifle & Pistol Association Inc. v. City of New York.

The decade-long absence of 2nd Amendment cases had particularly upset Justice Clarence Thomas, who wrote in in February 2018, when the Court refused to hear a case challenging a California mandatory 10-day waiting period. Justice Thomas wrote in dissent:

If a lower court treated another right so cavalierly, I have little doubt that this Court would intervene. But as evidenced by our continued inaction in this area, the Second Amendment is a disfavored right in this Court.

Because I do not believe we should be in the business of choosing which constitutional rights are “really worth insisting upon,” Heller, supra, at 634, I would have granted certiorari in this case….

Our continued refusal to hear Second Amendment cases only enables this kind of defiance. We have not heard argument in a Second Amendment case for nearly eight years. Peruta v. California, 582 U. S. ___, ___ (2017) (THOMAS, J., dissenting from denial of certiorari) (slip op., at 7). And we have not clarified the standard for assessing Second Amendment claims for almost 10. Meanwhile, in this Term alone, we have granted review in at least five cases involving the First Amendment and four cases involving the Fourth Amendment—even though our jurisprudence is much more developed for those rights.

If this case involved one of the Court’s more favored rights, I sincerely doubt we would have denied certiorari….

The Court would take these cases because abortion, speech, and the Fourth Amendment are three of its favored rights. The right to keep and bear arms is apparently this Court’s constitutional orphan. And the lower courts seem to have gotten the message.

We have covered NYS Riflease since the court initially agreed to take the case in January 2019, Supreme Court agrees to hear 2d Amendment case involving NYC firearm transport restrictions:

The Supreme Court finally has agreed to hear a 2d Amendment case, the first time since the Heller v D.C. (2008) and McDonald v. Chicago (2010) decisions.

Some of the Justices, and other commentators, have lamented the failure of the Court to take 2d Amendment cases….

The Supreme Court just agreed to hear a challenge to a New York City law barring transport of lawfully owned firearms except to one of six licensed firing ranges. The case is New York State Rifle & Pistol Association Inc. v. City of New York.

The Petition for Certiorari described the Question Presented:

Whether the City’s ban on transporting a licensed, locked, and unloaded handgun to a home or shooting range outside city limits is consistent with the Second Amendment, the Commerce Clause, and the constitutional right to travel.

After the case was accepted and extensively briefed by the parties and dozens of groups filing Amicus (friend of the court) briefs, N.Y. City tried to avoid a decision on the merits by changing the law, which it claimed in a July 22, 2019 Suggestion of Mootness. The New York State Rifle & Pistol Association argued that under long-standing principles, a party cannot moot a case and thereby manipulate the judicial system

NYC was joined by a group of Democrat Senators, led by Sheldon Whitehouse (RI), who crudely threatened the court with restructuring if it didn’t dismiss the case as moot, Dem Senators to Supreme Court: Rule our way on 2nd Amendment case, or face possible restructuring:

A group of Democratic Senators (Whitehouse, Gillibrand, Hirono, Blumenthal, Durbin) just filed an extraordinarily vitriolic Amicus Brief in support of the Respondent, N.Y. City. The Brief was signed by Sheldon Whitehouse (D-RI) for the group, listing himself as Counsel of Record.

I would not be surprised if Whitehouse substantially drafted the Brief himself. As we have documented here for a decade, Whitehouse is extremely pejorative towards his political opponents, who invariably are portrayed as bad people with bad motives….

Whitehouse’s attacks on Brett Kavanaugh during the confirmation hearings were demeaning and absurd, Senator Sheldon Whitehouse grilled Brett Kavanaugh about a high school yearbook fart joke. Seriously.

So it’s no surprise that the Brief signed by Whitehouse attacked Kavanaugh, the conservatives on the Court, and the very existence of the Court itself by suggesting the Court would be restructured if it ruled the wrong way.

It was a double-barrel attack — impugning the motives of those holding different views of the 2nd Amendment and threatening to damage the Court’s legitimacy….

The closing paragraph was at best a thinly-veiled threat (emphasis added):

The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it be “restructured in order to reduce the influence of politics.” Particularly on the urgent issue of gun control, a nation desperately needs it to heal.

This was not so much a legal argument, but a shot across the bow of the Court and Chief Justice Roberts in particular.

Despite Whitehouse’s threats, the court did not immediately dismiss, the case, but rather, scheduled oral argument with one of the issues to be argued being the mootness claim.

Based on the oral arguments about mootness, it seemed that the case would be dismissed as moot, Will SCOTUS moot its big 2nd Amendment case? An analysis of oral arguments:

Many Second Amendment supporters were excited this month for the Supreme Court to hear New York Rifle & Pistol Ass’n v. City of New York, the first major Second Amendment case since 2010.

But now, with oral argument behind us, it looks likely, although not certain, the case will be considered moot.

The Justices spent a majority of their time asking about mootness during the Dec. 2, 2019 oral argument, the first Second Amendment argument before the Court since McDonald v. Chicago was argued on March 2, 2010. (TranscriptAudio)

This disappointed those of us who hoped to see the Justices dive into the merits of the case, and the unconstitutionality of the City of New York’s firearms regulation….

Paul Clement, representing New York State Rifle & Pistol Association, started his argument by focusing on the merits of the Second Amendment issues, but about two-minutes into his argument, Justice Ginsberg asked the first question, refocusing the argument on mootness.

JUSTICE GINSBURG: But, Mr. — Mr. Clement, the city has now been blocked by a state law, and the state has not been party to these proceedings. The state says: City, thou shalt not enforce the regulations. So what’s left of this case? The Petitioners have gotten all the relief that they sought. They can carry a gun to a second home. They can carry it to a fire — to a practice range out of state.

After this question, the next 16 minutes of Mr. Clement’s argument was almost completely focused on the mootness question. A charge led predominately by Justices Ginsburg and Sotomayor with a Justice Kagan or Justice Breyer question thrown in from time to time. Notably, not a single conservative Justice asked Mr. Clement a question. The line of questioning was completely dominated by the more progressive Justices….

Justice Gorsuch also seemed to take issue. Specifically, Justice Gorsuch took issue with Mr. Wall’s apparent dismissal of the Petitioners argument regarding the “continuous and uninterrupted,” language.

JUSTICE GORSUCH: . . . [W]hy isn’t the dispute still alive from the old law if that’s a form of relief they would have sought and is still, despite the new law, being denied them? Isn’t that a classic definition of relief that was sought but now still – despite herculean, late-breaking efforts to moot the case, still alive?

While oral argument doesn’t necessarily predict a result, in this case it did.

The Supreme Court in a per curiam opinion, dismissed the case as moot. (A per curium opinion means it is not authored by any particular Justice but is more of a consensus, a format often used on procedural matters.)

Excerpts from the Opinion:

After we granted certiorari, the State of New York amended its firearm licensing statute, and the City amended the rule so that petitioners may now transport firearms to a second home or shooting range outside of the city, which is the precise relief that petitioners requested in the prayer for relief in their complaint. App. 48. Petitioners’ claim for declaratory and injunctive relief with respect to the City’s old rule is therefore moot….

Petitioners also argue that, even though they have not previously asked for damages with respect to the City’s old rule, they still could do so in this lawsuit. Petitioners did not seek damages in their complaint; indeed, the possibility of a damages claim was not raised until well into the litigation in this Court. The City argues that it is too late for petitioners to now add a claim for damages. On remand, the Court of Appeals and the District Court may consider whether petitioners may still add a claim for damages in this lawsuit with respect to New York City’s old rule.The judgment of the Court of Appeals is vacated, and the case is remanded for such proceedings as are appropriate.

Justice Kavanaugh wrote a concurring opinion agreeing the the case was moot, but joining the dissent as to the necessity for the Supreme Court to consider lower court disregard of Heller and McDonald, suggesting additional 2nd Amendment cases should be taken by the court:

I agree with the per curiam opinion’s resolution of the procedural issues before us—namely, that petitioners’ claim for injunctive relief against New York City’s old rule is moot and that petitioners’ new claims should be addressed as appropriate in the first instance by the Court of Appeals and the District Court on remand.

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.

Justice Alito wrote a dissent, joined by Gorsuch and Thomas, disagreeing that the case was moot and excoriationg the manipulative tactics of NYC:

By incorrectly dismissing this case as moot, the Court permits our docket to be manipulated in a way that should not be countenanced….

In the District Court and the Court of Appeals, the City vigorously and successfully defended the constitutionality of its ordinance, and the law was upheld based on what we are told is the framework for reviewing Second Amendment claims that has been uniformly adopted by the Courts of Appeals.1 One might have thought that the City, having convinced the lower courts that its law was consistent with Heller, would have been willing to defend its victory in this Court. But once we granted certiorari, both the City and the State of New York sprang into action to prevent us from deciding this case. Although the City had previously insisted that its ordinance served important public safety purposes, our grant of review apparently led to an epiphany of sorts, and the City quickly changed its ordinance. And for good measure the State enacted a law making the old New York City ordinance illegal….

Regrettably, the Court now dismisses the case as moot. If the Court were right on the law, I would of course approve that disposition. Under the Constitution, our authority is limited to deciding actual cases or controversies, and if this were no longer a live controversy—that is, if it were now moot—we would be compelled to dismiss. But if a case is on our docket and we have jurisdiction, we have an obligation to decide it….

Thus, in this case, we must apply the well-established standards for determining whether a case is moot, and under those standards, we still have a live case before us. It is certainly true that the new City ordinance and the new State law give petitioners most of what they sought, but that is not the test for mootness. Instead, “a case ‘becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.’” Chafin v. Chafin, 568 U. S. 165, 172 (2013) (emphasis added). “‘As long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot.’” Ibid. (emphasis added).

Respondents have failed to meet this “heavy burden.” Adarand Constructors, Inc. v. Slater, 528 U. S. 216, 222 (2000) (per curiam) (internal quotation marks omitted). This is so for two reasons. First, the changes in City and State law do not provide petitioners with all the injunctive relief they sought. Second, if we reversed on the merits, the District Court on remand could award damages to remedy the constitutional violation that petitioners suffered.

The dissent took note of the threats by the Democrat Senators:

Five United States Senators, four of whom are members of the bar of this Court, filed a brief insisting that the case be dismissed. If the Court did not do so, they intimated, the public would realize that the Court is “motivated mainly by politics, rather than by adherence to the law,” and the Court would face the possibility of legislative reprisal. Brief for Sen. Sheldon Whitehouse et al. as Amici Curiae 2–3, 18 (internal quotation marks omitted).

One of the main downsides of this outcome is that Sheldon Whitehouse will feel emboldened to threaten the judiciary in the future. Whether his threats had an actual impact is hard to know, but clearly that was his intent. Whitehouse is a classic bully, he senses weakness, and Roberts is the weak link.

The silver lining is that at least four of the Justices (Kavanaugh, Alito, Gorsuch, and Thomas) likely will vote to take another 2nd Amendment case, or more than one.

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Comments

Since Roberts has no concern about the abuse of FISA by the FBI, and his opinion that a tax is not a tax in ObamaCare; he is obviously owned and operated as a mere puppet. Is he afraid of being killed?

Roberts, again.

    Like Boeheer, it’s hard to believe he isn’t being blackmailed on a regular basis.

      I still think he’s just spineless. I’ve known enough spineless men that were perfectly capable of caving in the complete absence of outside pressure.

        He might be spineless, but spineless men in high positions is an oxymoron.

        To be spineless and wind up in a high position, you either have to be born into it (former prince harry) or allow yourself to be routinely bought (think: boehner).

        Occum’s razor comes to mind, no?

If RBG is holding out in hopes that Trump won’t be in place to nominate her successor, she can’t be happy about Biden right now.

A typical Roberts move. Extreme cowardice.

So it is the position of the Supreme Court that you may keep and bear arms on your own private property, but you may be forbidden to transport, keep, bear, repair, load, fire, admire, trade, sell, buy, display, or carry anywhere else, and may be thrown into jail the moment you set foot outside of your home with as little as an empty shell casing (New Jersey).

Gosh, it’s a good thing we have such diligent keepers of our constitutional rights.

    alaskabob in reply to georgfelis. | April 27, 2020 at 7:36 pm

    You have an old dried up piece of paper with letters printed on it saying amendments 1 through 10. What more do you want? (sarc, sarc,sarc ad infinitum)

    Milhouse in reply to georgfelis. | April 27, 2020 at 7:46 pm

    No, that is very much not the court’s position. There is very little doubt that had NY not changed its law it would have lost the case. That’s why it changed it. Nothing else would have convinced it to do so.

    But the majority is probably correct that since the law was changed the case is moot, and the court is no longer entitled to rule on it. That’s not fair, but it’s the law. Had the plaintiffs had the foresight to ask for § 1983 compensation the case would still be live; maybe they should be asking their lawyers why they didn’t do so.

      starride in reply to Milhouse. | April 27, 2020 at 8:01 pm

      The problem is there is nothing to stop them from changing the law back tomorrow. With the time frame it takes these cases to reach the SC, it could b 2 to 4 years of NY enforcing a unconstitutional law before it can get to the SC again.

        Barry in reply to starride. | April 27, 2020 at 8:36 pm

        “… there is nothing to stop them…”

        The precise reason the SC did not take up the case. The states just make new law with new wording, all unconstitutional, while the Supreme Court of the United States dances on the grave of the constitution.

        They know exactly what they are doing.

        Milhouse in reply to starride. | April 27, 2020 at 8:54 pm

        Any city or state or congress can make unconstitutional laws. That a city could make unconstitutional laws does not give a court the right to decide in advance on a law that it hasn’t made. You can’t sue it over a law you’re only afraid it might make.

        Courts have no authority to rule where there is no active case before them. They cannot give advisory opinions. That’s the main, really the only constraint on courts that prevents them from becoming dictators.

        As I wrote, had the plaintiffs asked for damages the case would still be live. It’s their own fault that they didn’t.

          Barry in reply to Milhouse. | April 27, 2020 at 11:10 pm

          Wrong again and justices Alito, Gorsuch and Thomas disagree with you.

          You change the nature of the discussion to swing it. We are not discussing taking up a future law as yet written, we are talking about the SC taking a case for a law that was written and put in force. The state plays a game, and the other 5 justices are as corrupt as the state of NY. Those justices don’t like the 2nd amendment and want to eliminate it by ignoring it, which is exactly what they did here.

          Milhouse in reply to Milhouse. | April 27, 2020 at 11:19 pm

          We are certainly discussing taking up a future law as yet written. That is precisely what starride and you suggested. The illegal law that was written and put in force no longer exists. You say the court should have ruled anyway, and your excuse for that is merely that it might one day make another illegal law. Now you deny what you yourself just wrote?! You really are a dishonest person, a nasty piece of work.

          Milhouse in reply to Milhouse. | April 27, 2020 at 11:20 pm

          And once again, it’s six, not five. Two of whom do like the 2nd amendment, and certainly don’t want to eliminate it.

          Barry in reply to Milhouse. | April 28, 2020 at 9:08 am

          “We are certainly discussing taking up a future law as yet written.”

          No, we are discussing a law the state of new York passed and put in force, then retracting it when the challenge went to the SC.

          It is dishonest to say anything else. The SC has every right to rule on a law that has been passed and then removed. You would know this if you were an honest reviewer of court precedence and the constitution.

          They are just avoiding the rulings on the 2nd because it allows states like NY to play hide the constitution along with many other states.

          To state otherwise is dishonest, and nasty.

          Once again, you choose the side of the progs, nasty and dishonest.

          Barry in reply to Milhouse. | April 28, 2020 at 9:26 am

          Once again I make civil comments and milhouse is the one that starts with the invective, in this case “You really are a dishonest person, a nasty piece of work.”

          I don’t give a flip, Milhouse is like all the other progs and almost always wrong, nasty, and dishonest. I think Milhouse has a hotkey to insert “dishonest and nasty”.

          But just for the record, please take note.

      DaveGinOly in reply to Milhouse. | April 28, 2020 at 3:09 pm

      As in Alito’s dissent, damage was already done by the law, and plaintiffs have now been denied compensation for their injury.

      What if a cop unnecessarily beat you on the head, fracturing your skull, but then stopped when you screamed, “Stop or I’ll sue!”? Would that be OK? Would you let the cop get away with that? Should the cop feel that he’s safe from any reprisal because he stopped when you asked him to?

mickshrimpton | April 27, 2020 at 7:27 pm

Roberts is W in a black robe.

Subotai Bahadur | April 27, 2020 at 8:28 pm

Right or wrong, the Judicial Branch acts as the referee between the Executive and Legislative Branches; as both the Executive and Judicial Branches try to void the Constitution and its protections for citizens. Now, if it seems that the Judicial Branch has as its goal the avoidance of interfering with the impositions of the other two Branches . . . what recourse do citizens have. [Hint, the case having involved the Second Amendment is both ironic and on point. It is not what we want to have happen in lieu of the rule of law, but somebody better stand up for the Constitution as a whole and the Bill of Rights in particular or things are going to get untidy.]

Subotai Bahadur

    Milhouse in reply to Subotai Bahadur. | April 27, 2020 at 8:57 pm

    the Judicial Branch acts as the referee between the Executive and Legislative Branches

    No. The whole point of the political questions doctrine is that it doesn’t do that. But of course this case wasn’t about that. It was a case between plaintiffs who were harmed by a brazenly unconstitutional law — so obviously unconstitutional that as soon as the Supreme Court agreed to hear it the city changed the law, thus making the case moot.

      Barry in reply to Milhouse. | April 27, 2020 at 11:06 pm

      Supreme Court justices Alito, Gorsuch, and Thomas disagree with you.

      The other five simply wish to eliminate the 2nd amendment by ignoring it.

        Milhouse in reply to Barry. | April 27, 2020 at 11:15 pm

        Six, not five. And Roberts and Kavanaugh certainly don’t want to eliminate the 2nd amendment. But in any case it’s irrelevant to the point here, which is Subotai Bahadur’s claim that “the Judicial Branch acts as the referee between the Executive and Legislative Branches”. I don’t think Alito or Gorsuch, and certainly not Thomas, would agree with that.

          Barry in reply to Milhouse. | April 28, 2020 at 9:14 am

          “And Roberts and Kavanaugh certainly don’t want to eliminate the 2nd amendment.”

          Get back to me when they take a case that involves 2nd amendment rights, rule broadly instead of constructing a decision so narrow it is near meaningless, and put some teeth in the ruling.

          The court has ample opportunity to do this and Roberts is avoiding it just like the others.

          There is only one conclusion to be drawn, the majority of the court doesn’t like the US Constitution and ignores it.

I have to agree with the dissent. The practical and easily foreseeable result of dismissing will be more infringement of citizens rights.

In reality, SCOTUS just told very municipality, county and state to go ahead and enact laws which are constitutionally impermissible. If the citizen impacted has deep enough pockets then that citizen can undergo the expensive and time consuming actions at trial court, then another set at the appellate court. If the citizen is persistent enough and is fortunate enough to have their case selected as one of the 100-120 cases that come before SCOTUS, then don’t worry. As long as the government actor changes their unconstitutional law, SCOTUS will dismiss the case and won’t enter a ruling on the facts that create a body of case law to prohibit the same action by another governmental actor.

So, 49 States could one by one follow the same path as N.Y. So could each of the over 8000 county governments and however many municipal governments. Thanks SCOTUS, can we do some blue policy now or is this restricted to red policy preferences when it comes to infringement?

It appears that the Mayor of Jackson MS has unilaterally declared that the ability of citizens to open carry firearms is not viable during the covid scare.

    Milhouse in reply to CommoChief. | April 27, 2020 at 9:00 pm

    What’s the alternative? If the court were to rule now, how would that not be an advisory opinion?

    Maybe the next time this happens the plaintiffs will take care to ask for damages. And maybe these plaintiffs should ask their lawyers why they didn’t do that.

      CommoChief in reply to Milhouse. | April 27, 2020 at 10:32 pm

      IMO, the clear alternative is to rule on the merits of the case based upon the trial and appellate court record as well as briefs to SCOTUS and oral argument.

      In not doing so SCOTUS has allowed the state of N.Y. to cynically and intentionally abuse the court system, precisely because SCOTUS sought to find another way to avoid application of Heller and found that very thin pretext in mooting the entire trial and appellate record by not requiring N.Y. to overcome that burden.

      An injunction against the state of N.Y. prohibiting their actions as inconsistent with Heller would not be an advisory opinion.

      Look I will agree that the issue of mooting this was a close call. I disagree with the call for the reasons stated here and in my post above.

      However, if the Justices who voted for this can please describe the same circumstances in which the defendant government in effect says ‘oops my bad, let me fix that law, see no harm no foul’ on another modern case involving an enumerated, black letter, inarguably constitutional right, and SCOTUS also said it was moot, I will be happy to withdraw my cynical opinion.

        Milhouse in reply to CommoChief. | April 27, 2020 at 11:06 pm

        An injunction against the state of N.Y. prohibiting their actions as inconsistent with Heller would not be an advisory opinion.

        Enjoining a state (or a city, since this was a city law, not a state law) from making a hypothetical law that it loudly declares it has no intention of making, is not an advisory opinion?! Isn’t that the very definition of one?

        Yes, it’s frustrating and unfair, but I don’t see how one can justify any other outcome. I think I agree with Kavanaugh, who obviously shares that frustration but couldn’t avoid the facts. The city pulled a fast one on the court, and got away with it.

        This is why the plaintiffs should have asked for damages. If they had then that would be something the court could have ruled on, though even then I suppose the city could have just decided to pay up and make it go aay.

          CommoChief in reply to Milhouse. | April 27, 2020 at 11:46 pm

          Milhouse,

          Ultimately I think we are saying the same thing except we disagree on viability of the case. IMO, the state of N.Y. should have been forced to prove good faith by:
          1. We admit our prior law was unconstitutional, stipulate to all facts and enter into a consent decree we won’t enact these laws or laws with similar effects.
          2. Incorporating the questions and circumstances posed in oral argument by Justice Alito, I believe, which flummoxed the defendant counsel. I believe it was the question about traveling and stopping at his mother’s house on the way to the range. These points were not specifically addressed in the ‘update’ to the statute and sort of knocked defense counsel back a bit.

          Okay so since I don’t believe mooting was serving justice and you don’t believe that an injunction would have served justice then how about an enforceable consent decree?

          After all if the state has no intention of returning to those practices why wouldn’t they welcome a consent decree to keep them honest?

We are running out of adults in the room. This reminds me of that scene in ‘World War Z’ where the zombies climb on top of each other to form a mound, finally scrambling over the fortress wall. We keep getting these rabid zombie politicians and judges, climbing on top of each other until they get over the top and inside to feast on the uninfected. If we lose 2A we’ll quickly lose 1A, then the whole Republic falls. Look at the covid-19 situation and tell me I’m wrong.

    CommoChief in reply to CKYoung. | April 28, 2020 at 12:10 am

    Happening in Jackson, Mississippi as we speak. Mayor decided his ’emergency’ powers allow him to unilaterally overrule the Mississippi Constitution regarding open carry.

    This is the sort of thing that the DoJ needs to get in front of and stop before those with less patience and trust that the judicial system will eventually do the right thing, take immediate steps on their own.

    The decision SCOTUS handed down today, while maybe it was arguably very narrowly correct, doesn’t create confidence in the ultimate justice of our system. Those decisions add up. People take notice and loose faith that the system can work.

    People without faith and a hopeless sense that the system is stacked against them at every turn will not long voluntarily abide by the rules of a system in which they are or feel they are without any meaningful voice.

    That is another aspect of their rulings that SCOTUS needs to begin to accept. They may want to avoid certain cases due to perceptions about becoming a part of the political debate but refusing to rule, as in this case, or constructing fanciful imaginings of legislation vs the plain text as in the obomacare challenge, are equally if not more political.

    IMO, it would be beyond a very good thing if SCOTUS could remember that fact.

Takes years to get a case to the SCOTUS.

What NY did was concede the particular law that was challenged, hoping for just this result – case was moot because the law was already repealed.

Meanwhile, they’ve since passed a variety of similar laws and other States have too.

So, anytime a case gets close to a SCOTUS ruling on anything, States can now “moot” them by repealing the law challenged, then go about doing precisely the same thing with fresh laws.

Allows them to violate the Constitution continuously, while periodically having to replace a law with essentially the same law to kick the can down the road.

    Barry in reply to Aarradin. | April 28, 2020 at 9:19 am

    “Allows them to violate the Constitution continuously, while periodically having to replace a law with essentially the same law to kick the can down the road.”

    Precisely. The majority knew what they were doing. They don’t care about the law, they voted against to allow the states to play hide the 2nd amendment.

smalltownoklahoman | April 28, 2020 at 6:47 am

Frustrating and disappointing and I share the fear that this is just going to encourage behavior we don’t want to see, such as more attempts at bullying the court and states/municipalities trying to pull fast ones on the court. That is a bad precedent so far as encouraging defendants and plaintiffs to respect the court!

buckeyeminuteman | April 28, 2020 at 7:30 am

In this case, the majority ruled that they are all weenies and have no interest in taking a stand. Very disappointing.

This is what is known in the vernacular as “moving the goal posts.” It is generally considered unfair. But now it’s considered “justice.”

Shameful of the SC to punt. Roberts should be demoted and Thomas made Chief.

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