Early Mootness Doctrine

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Article III, Section 2, Clause 1:

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.

The Supreme Court’s 1895 decision in Mills v. Green1 was the first Supreme Court opinion that directly addressed the mootness doctrine.2 Mills involved the election of delegates to a convention to revise South Carolina’s constitution.3 A South Carolina citizen filed suit, claiming that the state’s voter registration statutes unconstitutionally “abridg[ed], imped[ed], and destroy[ed] the suffrage of citizens of the state and of the United States.” 4 While the case was pending on appeal, the date of the delegate election for the convention passed, the delegates were selected, and the constitutional convention had assembled.5 The Supreme Court therefore concluded that there was no longer any “actual controversy involving real and substantial rights between the parties” and dismissed the appeal accordingly.6 The Court explained that the Federal Judiciary’s “duty” under the Constitution was only “to decide actual controversies,” not “to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.” 7 Applying that principle to the facts of the case before it, the Court emphasized that “the whole object of the [plaintiff’s lawsuit] was to secure a right to vote at the election.” 8 Because the Court could not retroactively make the plaintiff eligible to vote in an election that had already occurred, the Court concluded it was unable to grant the plaintiff the relief that he sought.9 Mills therefore firmly established the legal principle that otherwise justiciable cases may become nonjusticiable with the passage of time.10

Notably, the Mills Court did not expressly base its holding on Article III’s “case or controversy” requirement; nothing in Mills squarely suggested that the mootness doctrine was a constitutionally mandated limitation on the federal courts’ jurisdiction, as opposed to a self-imposed prudential restriction on the justiciability of disputes.11 Thus, the Court applied the mootness doctrine articulated in Mills on various occasions throughout the early- to mid-twentieth century without explicitly suggesting that federal courts lacked the constitutional authority to adjudicate moot cases.12 It was not until the Court’s 1964 decision in Liner v. Jafco, Inc.13 that the Court first explicitly acknowledged mootness’s constitutional dimension.14 The respondents in Liner had successfully convinced a state court to enter an injunction15 to prohibit picketing at a construction site.16 The petitioners thereafter appealed to the U.S. Supreme Court, contending that the state court lacked the authority to issue the injunction.17 While the case was pending, however, “construction at the site had been completed.” 18 The Court therefore had to determine whether the completion of the construction project rendered the case moot.19

The Court answered that question in the negative.20 The Court observed that the respondents had “filed a bond providing that, if the injunction action failed,” the respondents would have to pay the petitioners “all such costs, damages, interest, and other sums as may be awarded and recovered against the [respondents] in any suit or suits which may be hereafter bro[u]ght for wrongfully suing out said Injunction.” 21 Because the petitioners could therefore potentially recover damages if “the injunction was wrongfully sued out,” 22 the Court determined that Liner was “not a case where th[e] Court’s decision on the merits” would not “affect the rights of the litigants.” 23 The Court accordingly concluded that the case was not moot because the petitioners retained “a substantial stake in the judgment” that existed “apart from and [wa]s unaffected by the completion of construction.” 24

In reaching this holding, the Liner Court expressly stated that the mootness doctrine “derives from the requirement of Article III of the Constitution under which the exercise of judicial power depends upon the existence of a case or controversy.” 25 The Court’s decision to characterize mootness as a constitutional doctrine had significant practical and doctrinal implications. As the Court would explain in other opinions following Liner, a federal court lacks jurisdiction to adjudicate a moot case even if all parties consent because moot cases do not constitute justiciable “cases or controversies” within the meaning of Article III.26 Thus, the Constitution requires the federal courts to raise and decide issues of mootness even if the parties have not raised the issue themselves.27 Likewise, because mootness is a constitutional limitation on the federal courts’ jurisdiction, a court must also “address the question of mootness before reaching the merits” of the parties’ claims.28 Moreover, the constitutional status of the mootness doctrine entails that Congress may not statutorily authorize federal courts to adjudicate moot cases.29

1: 159 U.S. 651 (1895).
2: See Honig v. Doe, 484 U.S. 305, 331 (1988) (Rehnquist, C.J., concurring) (describing Mills as “the case originally enunciating the mootness doctrine” ).
3: 159 U.S. at 652.
4: Id. at 651–52.
5: Id. at 657.
6: Id. at 653.
7: Id.
8: Id. at 657.
9: Id. at 658 ( “It is obvious, therefore, that, even if the bill could properly be held to present a case within the jurisdiction of the circuit court, no relief within the scope of the bill could now be granted.” ).
10: Mills does not hold, however, that an election dispute invariably becomes moot after the election occurs. See Norman v. Reed, 502 U.S. 279, 287–88 (1992) ( “We start with Reed’s contention that we should treat the controversy as moot because the election is over. We should not.” ); Meyer v. Grant, 486 U.S. 414, 417 n.2 (1988) ( “Although the November 1984 election in which appellees had first hoped to present their proposal to the citizens of Colorado is long past, we note that this action is not moot.” ); Storer v. Brown, 415 U.S. 724, 737 n.8 (1974) ( “The 1972 election is long over, and no effective relief can be provided to the candidates or voters, but this case is not moot.” ); Rosario v. Rockefeller, 410 U.S. 752, 756 n.5 (1973) ( “Although the June primary election has been completed and the petitioners will be eligible to vote in the next scheduled New York primary, this case is not moot.” ). As explained in greater detail below, see ArtIII.S2.C1.8.7 Exceptions to Mootness: Capable of Repetition, Yet Evading Review Capable of Repetition, Yet Evading Review (discussing the “capable of repetition, yet evading review” exception to the mootness doctrine), if a case involving an election dispute implicates legal issues that may recur in the future, that case does not necessarily become moot once the challenged election ends. See Norman, 502 U.S. at 288 ( “Even if the issue before us were limited to petitioners’ eligibility to use the Party name on the 1990 ballot, that issue would be worthy of resolution as ‘capable of repetition, yet evading review.’” (quoting Moore v. Ogilvie, 394 U.S. 814, 816 (1969))); Meyer, 486 U.S. at 417 n.2 ( “It is reasonable to expect that the same controversy will recur between these two parties, yet evade meaningful judicial review.” ); Storer, 415 U.S. at 737 n.8 ( “[T]he issues properly presented, and their effects on independent candidacies, will persist as the California statutes are applied in future elections. This is, therefore, a case where the controversy is ‘capable of repetition, yet evading review.’” ); Rosario, 410 U.S. at 756 n.5 ( “Although the June primary election has been completed and the petitioners will be eligible to vote in the next scheduled New York primary, this case is not moot, since the question the petitioners raise is ‘capable of repetition, yet evading review.’” ).
11: See 159 U.S. at 651–58.
12: See, e.g., United States v. W.T. Grant Co., 345 U.S. 629, 632–33, 635 (1953) (analyzing mootness without mentioning Article III’s case-or-controversy requirement).
13: 375 U.S. 301 (1964).
14: See, e.g., Lucero v. Bureau of Collection Recovery, Inc., 639 F.3d 1239, 1242 (10th Cir. 2011) (describing Liner as “the first occasion in which the Supreme Court expressly derived its lack of jurisdiction to review moot cases from Article III” ); N.J. Tpk. Auth. v. Jersey Cent. Power & Light, 772 F.2d 25, 31 n.11 (3d Cir. 1985) (explaining that “[t]he Supreme Court first explicitly relied on Article III” as the basis for the mootness doctrine in Liner, thereby “elevat[ing] . . . mootness doctrine to constitutional status” ).
15: An injunction is “a court order commanding or preventing an action.” Injunction, Black’s Law Dictionary (10th ed. 2014).
16: 375 U.S. at 302.
17: Id. at 303–04.
18: Id. at 303.
19: Id. at 304.
20: See id. at 304–09.
21: Id. at 302–03.
22: Id. at 305.
23: Id. at 306.
24: Id. at 305.
25: Id. at 306 n.3.
26: See, e.g., Sosna v. Iowa, 419 U.S. 393, 397 (1975) ( “While the parties may be permitted to waive nonjurisdictional defects, they may not by stipulation invoke the judicial power of the United States in litigation which does not present an actual ‘case or controversy.’” ).
27: See, e.g., United States v. Juvenile Male, 564 U.S. 932, 933–34 (2011) (per curiam) (deeming case moot even though “[n]o party had raised any issue of mootness in the [court below], and the Court of Appeals did not address the issue sua sponte” ); St. Paul Fire & Marine Ins. Co. v. Barry, 438 U.S. 531, 537 (1978) ( “At the threshold, we confront a question of mootness. Although not raised by the parties, this issue implicates our jurisdiction.” ); Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 7–8 (1978) ( “There is, at the outset, a question of mootness. Although the parties have not addressed this question in their briefs, ‘they may not by stipulation invoke the judicial power of the United States in litigation which does not present an actual case or controversy.’” ) (quoting Sosna, 419 U.S. at 398); North Carolina v. Rice, 404 U.S. 244, 246 (1971) (per curiam) ( “Although neither party has urged that this case is moot, resolution of the question is essential if federal courts are to function within their constitutional sphere of authority.” ).
28: E.g., Sosna, 419 U.S. at 397.
29: See, e.g., Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1342 (11th Cir. 2013) ( “Congress . . . may not bypass the Constitution’s ‘Case or Controversy’ requirement.” ); Wilcox Elec., Inc. v. Fed. Aviation Admin., 119 F.3d 724, 727 (8th Cir. 1997) ( “Congress may not, of course, change or undermine Article III.” ).