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02/26/2021

Republican Party of Pennsylvania v. Degraffenreid: A Defense of Denial
Michael Ramsey

Earlier this week the Supreme Court denied certiorari in Republican Party of Pennsylvania v. Degraffenreid, the challenge to the change in voting procedures prior to the 2020 election.  The Court's two strongest originalists, Justices Thomas and Gorsuch, dissented, along with Justice Alito.  (Josh Blackman has more at Volokh Conspiracy: Making sense of Republican Party of Pennsylvania v. Degraffenreid).

The denial has been criticized sharply in some circles (see here from the Wall Street Journal and here -- more sharply -- from Ken Masugi).  I think the criticism is mistaken for the reasons described below.

The petitioners' arguments seem strong (in originalist terms) on the merits.  The claim is that the Pennsylvania Supreme Court changed the procedures for the election contrary to state law, as set by the state legislature, in violation of the U.S. Constitution's direction (Art. II, .Sec. 1) that a state's electors shall be chosen in the manner prescribed by "the Legislature thereof" and that (Art, I, Sec. 4) "the Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof."

But the case is moot.  The petitioners apparently don't dispute that the number of votes at issue isn't enough to have affected the presidential election in Pennsylvania, or any election for any other federal office.  The dissenting opinions of Justice Thomas and of Justice Alito (joined by Justice Gorsuch) acknowledged this.

The dissents rely instead on the exception to mootness for issues "capable of repetition yet evading review."  I'm not sure that that exception actually applies on the facts.  Why can't the issue be decided prior to a future election, if the issue comes up and if the parties and the courts move a little faster?  Indeed, as Thomas and Alito both acknowledge, the issue in this cases came to the Court on an emergency petition before the election and the Court (for whatever reason) refused to hear it.   But anyway, originalists should be wary of relying on the exception.

Let's assume that Article III's references to "judicial Power" and "Cases, in Law and Equity, arising under this Constitution" as an original matter exclude federal courts from deciding moot cases.  If this is a jurisdictional limit on the federal courts, federal courts can't just invent an exception when it seems convenient.  And I'm not aware of an argument that the "capable of repetition yet evading review" is anything but a judicially invented exception.  

The modern exception is mostly closely associated with Roe v. Wade.  That case provides no justification for it aside from a cite to Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, (1911), which in turn cites two other cases from roughly the same period, all to the effect that sometimes it's useful for courts to give guidance even when the immediate controversy has become moot.  The Court has applied the exception recently, including in Kingdomware Technologies Inc. v. United States, 136 S.Ct. 1969 (2016), in a unanimous opinion by Justice Thomas.  But Kingdomware also has no originalist analysis in support of the exception (even though it confirms that the general rule against deciding moot cases rests on Article III).

Now maybe the exception dates back further than that, to eighteenth-century English and U.S. practice, which would likely make it appropriate on originalist grounds.  But the cases don't say that it does, and the Degraffenreid dissents by Justice Thomas and Alito don't say so either.  And even if it does, we don't know the scope of the historical exception nor whether it would apply on the Degraffenreid facts.  The case seems to me very much akin to a request for an advisory opinion about the Constitution's limits on state courts in the election context.

For these reasons it seems appropriate for the Court to refrain from deciding the case, and questionable whether originalist Justices should insist on it doing so (especially in a matter such as certiorari, which is entirely in the Court's discretion).

In any event, it seems like a good topic for an academic originalist analysis (assuming there isn't already a definitive one out there).

ANDREW HYMAN ADDS: The leading article on the subject of mootness and its exceptions in England seems to be this one: Alex Shattock, The A Word: Academic Appeals in Public Law Challenges  (Judicial Review Volume 24, 2019 - Issue 4), available here.  You can see the first page for free, but the rest will cost you 45 bucks.