I wrote up some quick thoughts on today’s opinion in the 2A case (NYSRPA) and the ACA case (Maine Community Health). In that post, I speculated what the opinions might mean for a case that the Court granted to hear next term – the challenge to what remains of the ACA’s individual “mandate” and to the rest of the ACA too.

But the NYSRPA case, and in particular the dissent in NYSRPA, is also interesting to compare to a case the Court has already decided – the Wisconsin election case, RNC v. DNC – as well as another case the Court has yet to decide, June Medical Services v. Gee (a challenge to Louisiana’s admitting privileges requirement on abortion providers). In particular, measuring the NYSRPA dissent’s arguments against the posture of June Medical highlights the contingent nature of some of the NYSRPA dissent’s claims about the Supreme Court’s docket. More importantly, it further confirms how absolutely appalling and unpersuasive the reasoning in the Court’s opinion in RNC v. DNC was: The NYSRPA dissenters were more than content to award Second Amendment plaintiffs relief they had not specifically requested, but they were unwilling to do the same for voting rights plaintiffs in the Wisconsin case – even when the Wisconsin voters’ lives were at stake. Yikes.

First, on abortion and guns: NYSRPA involves a now moot challenge to New York City’s former restrictions on transporting guns to firearm ranges and second residences. I’ve explained why the case is moot in prior writing, as well as in discussions on Strict Scrutiny.  But as my last post explained: 

NYSRPA involved a challenge to a New York City ordinance that prohibited transporting guns to second residences outside the City or to a vast majority of firearms ranges. When the plaintiffs challenged the ordinance, they sought an injunction against its enforcement. After the Supreme Court granted certiorari, New York City repealed the ordinance (through its administrative rulemaking process) and New York state enacted a law prohibiting the city from adopting the original, challenged ordinance again.

That is the definition of a moot case…. The plaintiffs sought to prohibit New York City from enforcing a law that … New York City can no longer enforce because it no longer exists (and because the City is prohibited from reenacting the ordinance!). 

The NYSRPA dissenters (Justice Thomas, Justice Gorsuch, and Justice Alito) went to extraordinary and at times absurd lengths to explain why the case was not moot.  The opening of Justice Alito’s dissent expressed concern that the Court’s opinion dismissing the case as moot “permits our docket to be manipulated in a way that should not be countenanced.”

The apparent concern with the manipulation of the Court’s docket is interesting because of course parties maneuver to get their cases on or off the Court’s docket all the time. Petitioners might seek to avoid having a case not conferenced at the “long conference” – when the odds of a grant are low.  Petitioners might also try and bring cases to the Court based on … the Justices’ own suggestions for what cases they are interested in hearing. (Justice Thomas in Planned Parenthood v. Box invited plaintiffs to bring challenges to statutes prohibiting abortion on the basis of certain characteristics, like race and disability, after more courts heard those challenges. And the Chief Justice had previously expressed interest in hearing cases challenging the validity of cy pres settlements, which led to Frank v. Gaos landing on the Court’s docket.) And states can pass laws hoping to get the Court to take a fresh look at the issue after, say, a change in the Court’s personnel.  (Why else would Louisiana want to relitigate Whole Woman’s Health v. Hellerstedt a mere three years after the case was initially decided? They are seeking to adjust the Court’s docket based on their own assessment of how likely it is they are to win or lose based on the Court’s personnel.). So the apparent concern with gamesmanship over the Court’s docket is a little odd given the frequency with which the Court countenances strategic manipulation of its own docket – and the frequency with which the Court invites manipulation of its own docket to suit the Justices’ own interests and views.   

Second, and more importantly, on Wisconsin. As most or at least many of you probably know, in RNC v. DNC, the Supreme Court stayed an injunction that would have extended the deadline for receiving absentee ballots in Wisconsin. Wisconsin opted to go forward with holding its presidential primary and various judicial elections on April 7, while the state was also subject to a shut down and stay at home order. The district court had enjoined the state from enforcing the requirement that ballots be received the day after the election (April 8^th), at least until April 13^th.  The Supreme Court stayed that order, and in the course of doing so also imposed a requirement that the ballots be postmarked by April 7^th. (That postmark requirement does not appear or exist in state law. And one of the reasons the Supreme Court gave for staying the district court’s order was because the district court had altered the requirements of the election too close to the election, which risked confusing voters. But that did not stop the Court from altering the requirements of the election *the day before the election*.)

The Supreme Court’s opinion generated considerable outcry. (I was among those who criticized the Court’s sloppy and unpersuasive legal reasoning and callous disregard for the lives of Wisconsin voters.  Sherrilyn Ifill also wrote this powerful piece situating the Court’s order among many instances where the Court’s conservative majority has countenanced voter suppression efforts by looking the other way and ignoring the burdens and sometimes deadly costs imposed on voters, often of color.) Then there was the anti-outcry—people who took this occasion to position themselves as more learned and reasonable by insisting that maybe the Court’s decision was closer than all of the angry, unreasonable people were suggesting and so on.

Subsequent developments have strengthened the initial critics’ arguments. There have already been more than 40 coronavirus cases linked to in-person voting in Milwaukee alone. Milwaukee has comparatively more racial minoirites than many other areas in Wisconsin. (The threat of contracting the deadly virus – in areas like Milwaukee, where the number of polling places was reduced from 180 to 5 – was among the concerns that the RNC dissenters and critics of the majority had raised, and that the RNC majority did not even acknowledge.)

And the NYSRPA dissent confirms the hollowness of the RNC majority’s reasoning.  One of the reasons the RNC majority gave for staying the district court’s order – thus denying the plaintiffs the relief they obtained in the district court – is because the plaintiffs had not requested an extension of the deadline to file absentee ballots. Now, that claim was dubious – the plaintiffs, in their papers, argued that they had requested this form of relief; the RNC dissenters pointed to a section of a transcript where the plaintiffs requested it; and as we’ve discussed on Strict Scrutiny, the district court’s earlier orders in the case referred to the plaintiffs’ request to extend the receipt deadline for absentee ballots. So everyone except the RNC majority appeared to think the plaintiffs had requested an extension.

NYSRPA confirms that at least three Justices in the RNC majority – Justice Gorsuch, Justice Thomas, and Justice Alito—don’t actually care whether plaintiffs requested a particular form of relief or not.  In NYSRPA, the plaintiffs had specifically requested an injunction against the enforcement of NYC’s no-longer-existent requirement. The dissenters explained that: “If this Court were to hold, as petitioners request and as I believe we should, that 38 N. Y. C. R. R. §5–23 violated petitioners’ Second Amendment right, the District Court on remand could (and probably should) award damages.” In other words, they are specifically endorsing the proposition that district courts can and should award plaintiffs different forms of relief than what the plaintiffs requested – here, legal relief (damages) versus equitable relief. In RNC, by contrast, they argued that the plaintiffs’ (asserted) failure to request a specific form of equitable relief meant that the district court was wrong to award it.

So what gives? I don’t want to go on and on about Wisconsin. But I do want to say that NYSRPA is another example of the perspective that some critics brought to the Court’s decision in RNC v. DNC. That perspective is exemplified by the broader and more wide-ranging lens that Sherrilyn Ifill’s Slate piece applied to evaluate the Court’s decision in RNC.  She argued, and I agree, that the bankruptcy of the Court’s decision in RNC was evident in light of the Court’s other cases on voting (and other topics too). Those other cases underscore why the purported “principles” that the RNC majority gave (or that the Court’s apologists gave) are unpersuasive and, at a minimum, do not justify forcing voters to vote in public in the midst of a deadly pandemic. 

For example, NYSRPA confirms the selectivity with which some Justices apply the principles they gave for their votes in RNC. When you put the two decisions together, they seem to say something like: It is okay for courts to award plaintiffs in Second Amendment cases relief they didn’t explicitly seek, but it is not okay for courts to award plaintiffs in voting rights cases relief they didn’t explicitly seek (even when not awarding that relief could force those voters to the choice between not voting or voting and contracting the coronavirus). That’s hardly a defensible principle. (The NYSRPA dissenters made clear that they were not suggesting the plaintiffs could amend their compliant to seek damages; instead they maintained that the plaintiffs’ request for “any other such further relief as the court deems just and proper” could encompass a request for damages. If that’s true, then why wouldn’t that generic catch all language be good enough for the RNC plaintiffs to have requested an extension for receiving absentee ballots.)

These comparisons between the NYSRPA dissenters’ claims and their views elsewhere, including in the Wisconsin case, underscore the point I ended my last point with (an obvious one, but one that’s worth repeating):

Maine Community Health is a nice reminder that sometimes the law is clear enough to generate an answer – even when that answer runs counter to a judge’s policy or partisan preferences. But NYSRPA is an equally important reminder that, even when the law is that clear, sometimes that won’t be enough.

@LeahLitman

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