Westchester County and Planned Parenthood Attempt to Manipulate SCOTUS Jurisdiction To Save Hill v. Colorado

Abortion groups urge adoption of "bubble" around abortion clinic, and before cert is filed, urge repeal of "bubble."

Before Dobbs was decided, I identified the epicycles of Roe--the distortions of various areas of constitutional law that stemmed from the abortion "ad hoc nullification" machine. One such precedent was Hill v. Colorado (2000). This case upheld a ban on sidewalk counselors approaching women near abortion clinics--they had to stay eight feet away. In dissent, Justice Scalia charged, "What is before us, after all, is a speech regulation directed against the opponents of abortion, and it therefore enjoys the benefit of the 'ad hoc nullification machine' that the Court has set in motion to push aside whatever doctrines of constitutional law stand in the way of that highly favored practice." And in Dobbs, Justice Alito referred to Hill as a "distortion" of First Amendment law. Hill is not long for this world.

Shortly after the Dobbs draft opinion was leaked, Planned Parenthood urged Westchester County (an affluent suburb of New York) to enact an eight-foot buffer zone. The County Attorney acknowledged that Hill may be on the chopping block, but it was still good law. Five days after Dobbs was decided, Westchester County enacted the exact same law at issue in Hill. Debra Vitagliano, who counseled women near abortion clinics, challenged the law. During the litigation, Planned Parenthood called the bubble law "critical" to protect abortion rights, and was "narrowly tailored." As could be expected, Westchester relied on Hill and the lower courts agreed. The Second Circuit upheld the law on June 21, 2023.

But a funny thing happened three weeks later: Planned Parenthood had a change of heart! On July 10, 2023, Planned Parenthood wrote a letter urging the County to repeal the "bubble" zone law.

Since the passage of the Reproductive Health Care Facilities Access Act last year, we have not seen how the 8-foot bubble zone has been beneficial to patients and guests entering and leaving our health centers. The bubble zone provision of the legislation is unenforceable, and therefore disrupts the integrity of the legislation's overall ability to achieve its goal of protecting patients of reproductive health care facilities. Repealing the bubble zone provision will, in fact, strengthen the Reproductive Health Care Facilities Act by making the protections of the law more concrete and clearer for all people to understand.

A law that was "critical" and "narrowly" tailed was suddenly no longer "beneficial." That same day, the National Institute for Reproductive Health also wrote a letter to the County to urge them to repeal the law. What a coincidence!

On July 21, 2023, Vitagliano filed her cert petition. And two weeks later, Westchester repealed the bubble law. Here, we have a naked effort to evade Supreme Court review. Amicus briefs from the Ethics & Public Policy Center and Texas Right to Life/America First spelled out all the details. Indeed, I teased this issue back in a July post.

Westchester has now filed its Brief in Opposition to certiorari. Unsurprisingly, the government contends that the case is moot since the bubble law was repealed. They also argue that the voluntary cessation doctrine should not apply, in part, because even Planned Parenthood opposes re-enacting the law!

Here, the County has repealed the bubble zone provision of Chapter 425; it has not modified it or otherwise kept it alive in some fashion. Further, there is no evidence that the County is considering or otherwise intends to reinstitute the bubble zone provision, and we have been informed that there is no intention of doing so. Indeed, with the benefit of a one-year lookback, it was clear to the County that the bubble zone was not necessary—it had never been enforced, and it would be difficult to do so, leading to confusion over what was or was not permissible under Chapter 425. The repeal was further supported by, inter alia, organizations directly impacted by Chapter 425 (Planned Parenthood) and reproductive-rights advocacy organizations (Choice Matters and the National Institute for Reproductive Health) who confirmed the difficulties with enforcement. [FN7]

FN7: 7 See letters in support from Planned Parenthood, Choice Matters, and the National Institute for Reproductive Health, available at http://tiny.cc/BubbleZoneRepeal.

Let me break this down. Planned Parenthood urged Westchester to repeal the law to avoid Supreme Court review. And now Westchester is citing Planned Parenthood's lobbying as evidence that the Supreme Court should deny review. Some chutzpah.

Here, I think we are seeing a redux of Acheson Hotels, LLC v. Laufer, which I wrote about in July. During oral argument in Acheson, Chief Justice Roberts highlighted the risk of maneuvering to avoid Supreme Court review. Roberts asked of counsel for Petitioner:

CHIEF JUSTICE ROBERTS: Maybe people will think that's easy or maybe not. The mootness question of whether or not a plaintiff can moot a case to manipulate the jurisdiction of this Court, I mean, the mootness papers weren't filed until after the Petitioner's opening brief. And we certainly have the authority under our precedent to decide, if you have two jurisdictional issues, which one to do first. And in terms of, you know, I think it's a difficult question as to whether or not somebody, particularly when you have a program of litigation like this around the country by people who may or may not have standing, can manipulate the Court's jurisdiction by, after the Court's granted cert, mooting out the case.

And the Chief posed a similar question for the United States as amicus curiae:

You're confident that the mootness question is easy. Is the government at all concerned about the manipulation of this Court's jurisdiction when you have -- because Ms. -- Ms. Laufer, I gather, is not the only person doing this, bringing hundreds of cases around the country, and then, when the Court gets interested in her case, it's all gone. It's moot. It doesn't stop any of the other dozens of people, however many there are, who are doing the same thing. So we may have to come up with another case as soon as this -- this one, if it's -- if it's not addressed, and then they will -- that one will be mooted. And, you know, we can't sort of keep granting cert and having it constantly being mooted with never a determination of whether there's standing in those variety of cases. I mean, you may think that that's not necessarily easier or harder than the standing question, but it's certainly not one that we can just, you know, toss off with the back of our hand, is it?

Roberts is right. Every county that has a "bubble" law will vigorously enforce it until a cert petition is filed, then repeal it. In case after case, abortion advocates will try to manipulate the Court's jurisdiction. The Court should not allow these shenanigans in Acheson, and should not allow them in Vitagliano.

Or, I have an ever better idea. The Planned Parenthood national organization should urge every jurisdiction to repeal any Hill-style laws because they are not "beneficial." That option would avoid a lot of unnecessary litigation to say nothing of chilled speech. But of course Planned Parenthood won't do that. They want these laws to remain in effect unless and until a certiorari petition is filed--which is precisely why the Court should grant review, and sweep Hill into the dustbin of repudiated constitutional principles.

Comments

[Dan Schiavetta]

"Planned Parenthood urged Westchester County (an affluent suburb of New York) to enact an eight-foot buffer zone."

My daughter works at Planned Parenthood Westchester.

It has three offices and, from the census income figures for those tracts, they are located at 175 Tarrytown Road, White Plains (median income $10,259 - $50,000), 150 Lockwood Avenue, New Rochelle ($50,000 - $79,999) and 6 Gramatan Avenue, Mount Vernon ($10,259 - $50,000). These are not close to the really high-income areas which are in the northern part of the county and which pull the average county income number upward.

Fortunately according to my daughter they have not had a big problem with people yammering and getting into the faces of the women (often in crisis and almost always alone) who show up for an abortion. It could be that given the currently low stakes, particularly in New York where abortion rights are not in danger, PP Westchester is making a strategic withdrawal from court engagement. This is not unheard of. Deliberately mooting your case to avoid a possible adverse decision on appeal is hardly "manipulation".

[Commenter_XY]

So, PP of Westchester is in fact attempting to manipulate SCOTUS and you're good with that. Is that what is happening here, captcrisis?

Look, when other non-profits with different POVs start doing the same thing, strategically mooting cases, this will be all good with you, right? Think about that.

So when the shoe is on the other foot, it will be a comfortable fit, right?

[Sarcastr0]

Read to the end of the comment.

[Dan Schiavetta]

XY,

Appellate courts are glad when a case settles or is withdrawn/mooted. It lightens their docket. Most have a special program into which all appeals are funneled, where they make the parties show up before a mediator (usually a retired judge) to try to get the case to settle or otherwise resolve.

Technically if the appellant wants to withdraw his appeal, the respondent can object, but what kind of argument is that? The respondent has already won.

[Lee Moore]

The respondent has already won.

Who pays the respondent’s costs incurred in the achievement of this victory ?

[SimonP]

We can't expect Josh to demonstrate self-consistency; his brain can barely handle one idea at a time!

But a more thoughtful version of Josh might consider how he'd reconcile his position on strategically mooting one's own case with the various posts he's written on how perfectly ordinary it is to bring several challenges to Biden national policies in a particular district of Texas.

[damikesc]

Tactics thst worked under Trump work under Biden. Who knew?

[David Nieporent]

how he’d reconcile his position on strategically mooting one’s own case with the various posts he’s written on how perfectly ordinary it is to bring several challenges to Biden national policies in a particular district of Texas.

Rather than talking about that, I'd have pointed to Blackman's positively exultant gushing about the brilliance of Jonathan Mitchell for drafting Texas's abortion bounty law in such a way as to evade meaningful judicial review.

[SimonP]

Now being used to create travel restrictions in Texas! So much potential, really, in that mechanic. It's amazing it took us so long to think of ways to directly restrict individual constitutionally-protected freedoms in a way the courts would do nothing about.

[Dilan Esper]

Pro-lifers have First Amendment rights, but the arrogant jerks who call themselves self-appointed "sidewalk counselors" and try to interpose themselves between women and their doctors in front of abortion clinics are the absolute scum of the earth. Just the worst actors. They terrorize women and have no right to interfere with a lawful service.

Was Hill v. Colorado rightly decided? Perhaps not. But whether or not there's a right to do this, have no doubt that the people doing this are far far far more evil than women who seek to terminate a pregnancy will ever be. They disgust me.

As for Josh Blackman, wasn't he recently telling us how the BS Judge Kacsmaryk and other right wing judges were doing was nothing more than "forum shopping"? Now he's suddenly concerned for the integrity of the federal court system? Is he serious?

[LawTalkingGuy]

I don’t think he’s making a pretense to be concerned about “integrity” as such. He seems pretty openly upset that the exercise of judicial power by conservatives can still be occasionally frustrated by other actors in the legal and political system. It’s apparent he genuinely thinks that a conservative majority should be entitled to quickly overturn every precedent he and other conservatives don’t like. It’s offensive to him that lawyers, governments, and organizations get to use well established legal and political tactics to thwart SCOTUS. He doesn’t think it’s part of a governmental and legal system. He genuinely thinks it lords over it.

[SimonP]

I saw a headline the other day stating that Ho, one of Josh's favorite judges on the Fifth Circuit, had said that judges need to get comfortable with the fact that they would face public criticism.

Before reading the article, I had a moment where I thought - Ah, well, that's an unexpected bit of maturity from Ho! I guess he understands that judges are still public officials whose decisions are perfectly open to criticism by the public affected by those decisions.

But no, that wasn't his point. Ho's point was: you need to turn your ear against it, and not allow public criticism to dissuade you from your own judicial activism. When you disregard precedent and procedure in order to reach what you feel to be the right result, you must do so boldly, and not allow the possibility of a public rebuke dissuade you!

[loki13]

Judge Ho ...

I look forward to the day when one of the VC contributors will do a deep dive into the 5th Cir.

And no, I'm not holding my breath.

[Idihax]

No, the absolutely scum of the earth are you faggot BLM supporters who riot and destroy things.

You homosexuals belong in concentration camps.

[Rev. Arthur L. Kirkland]

And your right-wing bigotry makes you the Volokh Conspiracy’s target audience.

[loki13]

I still remember when I first read Hill v. Colorado, and I remember thinking to myself, "Self, why is the Court using all of these 4th Amendment cases in a 1st Amendment case?" So I am not exactly on-board with the validity of Hill.

That said, I completely agree with you regarding this comment (and with the other people who have stated similar concerns). At a certain point, Blackman's posts become a parody of themselves, interested only in a conclusion without any concern for consistency.

I am reminded of an incident in law school when a 1L, after class, went up to a professor and asked (innocently) if they had ever litigated a case. Which led to the Professor getting as angry and defensive as I've ever seen anyone get. This makes me wonder about Blackman as well. The idea that real parties might have actual interests in litigation seems to befuddle him. Moreover, his desire that the Supreme Court acts as a super-legislature is anathema to our system of government.

The Supreme Court decides cases. The fact that they interpret the law to decide cases is a product of the system, but they aren't supposed to simply go around and interpret the law because they (or Blackman) really really want them to.

[Dan Schiavetta]

We can tell what the answer was to that 1L’s question.

[Noscitur a sociis]

This makes me wonder about Blackman as well.

Wonder no more!

[Dick King]

I believe that obstructive picketing should be illegal. You may attempt to speak to people who wish to enter any establishment where a legal activity is available, no matter what the nature of the activity is.

"Sidewalk councelors" should have the same rights to get in the faces of people going to an abortion facility as union picketers have to get in the faces of workers or customers at a company they're striking or trying to organize ... no more, but no less.

If it were up to me, there would be bubble laws, but they would cover all picketing, not just abortion pickets.

-dk

[Lee Moore]

Agreed. The "freedom of speech" should include the "freedom not to listen" but it's very difficult to police.

1. There's the problem of A speaking to B,C and D at the same time in the same place. B may not want to listen, but C and D might take a different view. B's right not to listen can't be used to stop A talking to C and D, just because B is also standing there.
2. So imagine a picket line. A yells at B "you effing scab !" B naturally doesn't wish to hear this. But if instead A yells "B is an effing scab" at C (a fellow striker) while B is walking by, there's no possible remedy. Rinse and repeat for anti-abortion picketing.
3. Then there's the matter of repeated unwelcome speech by different people. Instead of A yelling "you effing scab" at B, 209 times, 209 strikers can each yell same at B. Ditto anti-abortion protesters.

There may be some particular particular cases in which you can narrowly reconcile A's right to speak and B's right not to listen, but it's not going to be easy. And in practice it's very likely that the policing will be done in a highly viewpoint discriminating manner, according to the lawmakers' and enforcers' preferences.

[Life of Brian]

(median income $10,259 – $50,000)

Careful, now -- don't overpromise on statistical precision like this. We might end up actually knowing something, and then where would we be?

[Krayt]

Deliberately mooting your case to avoid a possible adverse decision on appeal is hardly “manipulation”

It’s not hardly manipulation. It’s complete, unfettered manipulation.

Or did I miss something?

[Brett Bellmore]

"Deliberately mooting your case to avoid a possible adverse decision on appeal is hardly “manipulation”."

Um, it's the dictionary definition of "manipulation", so far as I can see.

[loki13]

No, it's not.

Let's review. Litigation is about adverse parties having a dispute. You understand that, right? Let's simplify.

Party A wants X. Party B wants not X.

All courts do is determine the dispute between the parties. If there is no dispute (because of a dismissal of the case, because of a settlement, or because the case is mooted) then there is nothing for the Court to decide.

Parties determine what their interest are, and they can have multiple interests- such as the cost of litigation, over-arching goals, and so on. Courts are not supposed to "determine law" just because there is something that they really, really want to say. Even if you and Josh Blackman really want them to say it.

As someone else noted, imagine a car crash litigation, and the defendant settles prior to summary judgment being ruled upon. The court doesn't get to make a ruling to "say what the law is" in order to make a pronouncement in order to say that the Defendant really isn't liable, even if the Court really really want to do so, and believes that to be the case.

[LawTalkingGuy]

It’s one of those irregular verbs:

I use clever legal strategy
You manipulate
He’s facing disciplinary proceedings

[loki13]

Oh, I like that!

I'm giving you a head's up that I am totally going to steal that.

[LawTalkingGuy]

Can’t take full credit: a lot goes to Bernard Wooley.

https://m.youtube.com/watch?v=mDR_9BvrTg8

[Krayt]

Acknowledging you're gonna lose, on your argument, on the constituionality, whatever, so you withdraw, is manipulation. It is aka gaming the system, gaming the rules.

That you go sit, bitter somewhere, at having to do this, feeling the world has wronged you with the potential bad decision you avoided, doesn't make it not manipulation. That is manipulation.

[loki13]

No offense, but what?

If that's the case, then by definition ALL LITIGATION IS MANIPULATION.

You get that, right? Actually, I assume you're not an attorney, so you don't. Withdrawing claims that you think are going to lose happens all the time. Pleading additional minor claims to try to get to a jurisdictional requirement? All the time. Choosing the claims you bring in order to get to federal court (or state court)? All the time. Settling a case that you think you will prevail on because it will cost too much to litigate? All the time. Or, if you're a member of the plaintiff's bar (ahem), bringing a case with little to no merit because you're likely to get a small settlement? All the time.

I could keep going on, but this isn't gaming the rules. THESE ARE THE RULES. That's litigation- rules. Rules of civil procedure. Rules of evidence. The fact that you don't understand this is understandable- the fact that Blackman doesn't ... a little less so.

[LawTalkingGuy]

When Blackman and other professors were getting all huffy about questioning ethics at SCOTUS I found it notable that none of them taught or studied professional responsibility/legal ethics. Similarly it’s notable that Blackman doesn’t teach Civ Pro.

[Life of Brian]

this isn’t gaming the rules. THESE ARE THE RULES.

This is the sort of silly attempt at rationalization you see when a veteran of a self-governing profession gets a bit too high on his own supply.

Gaming the rules is by definition behavior that falls inside the technical scope of the rules. So simply trumpeting "I'm just playing by the RULES, yo!" doesn't move the ball forward an inch.

Similarly, when a teenager belts out a paragraph-length rendition of "people do X all the time -- it's totally cool!" competent parents don't just say "OMG, really? Carry on then, and send us a selfie!" But others in the peer group think it's the thmartest argument ever.

[shawn_dude]

Turning sour grapes into whine!

[ThePublius]

That's really a rather shallow, perhaps disingenuous simplification to make your point. SCOTUS is a court of appeals. No the same as a court deciding an original case. And, since Marbury v. Madison, very different.

I think SCOTUS should be able to choose if a case should be decided regardless of whether its been muted since cert was granted - and I think they can do so, no?

This kind of gamesmanship on municipalities' part is wrong.

[LawTalkingGuy]

No court of review gets to continue to exercise jurisdiction once the parties have reached an agreement and the plaintiff no longer needs relief. If SCOTUS thinks it can, then it’s not a court, it’s a supreme legislature that wants to set nationwide policy on buffer zones, and not actually resolve a dispute between two parties.

[LawTalkingGuy]

I should add before someone points this out that yes it is true that in courts of review dismissal isn’t automatic upon notice it’s done by motion and with court consent. But courts very very rarely keep cases the parties don’t want to continue.
It’s a safety valve for very unusual scenarios not a freewheeling license to keep cases to issue new rulings or overturn precedent.

[Lee Moore]

So the question then becomes one of when and whether the safety valve should come be used, not a question for high and very excitable pomposity, such as :

but this isn’t gaming the rules. THESE ARE THE RULES. That’s litigation- rules. Rules of civil procedure. Rules of evidence.

or

No court of review gets to continue to exercise jurisdiction once the parties have reached an agreement and the plaintiff no longer needs relief. If SCOTUS thinks it can, then it’s not a court, it’s a supreme legislature that wants to set nationwide policy on buffer zones, and not actually resolve a dispute between two parties.

It seems from the Chief Justice's musings that he is beginning to wonder whether it's time for that safety valve to come into play.

[LawTalkingGuy]

It should not be used when the issue is completely resolved between the parties. Like if a criminal defendant wants drops an appeal but the court notices he’s serving an illegal sentence they should continue to exercise jurisdiction. Or if voluntary cessation of a defendant doesn’t really look like it’s actually happening.

It is absolutely not for the purpose of maintaining jurisdiction because the court wants to make a ruling on an issue more broadly. If it does, everyone else should treat it as non-binding dicta or an advisory opinion.

[loki13]

"I think SCOTUS should be able to choose if a case should be decided regardless of whether its been muted since cert was granted – and I think they can do so, no?"

Mostly no. That said, I was being somewhat flippant. There are exceptions to mootness, and the most notable one (and the one that would apply in this case) is, of course, voluntary cessation (see, e.g., City of Mesquite). If Blackman was making a serious argument, he should have discussed this and why it should (or should not) apply, as opposed to bellyaching over normal litigation practice and referencing the inapposite Acheson.

The locality makes several convincing arguments as to why the voluntary cessation exception should not apply in this case.

(I would note, for purposes of completeness, that voluntary cessation does implicate the issue of attorney's fees, and that the seminal case was decided pre-Lujan. However, given the Court's more recent ... interesting choices regarding standing, I doubt that this would be an issue any time soon).

[Religion and Politics, my life]

Show your daughter the stats on coerced abortion. She helps evil people to murder innocent life.

"Nearly 70% of women with a history of abortion describe their abortions as inconsistent with their own values and preferences, with one in four describing their abortions as unwanted or coerced, according to the study published in the medical journal Cureus."

Those babies found in the DC dumpster were almost full term

Here is an anti-abortion Democrat and professed atheist, who leads Anti-Abortion Uprising

https://lailluminator.com/2023/09/15/anti-abortion-democrat/

[Dan Schiavetta]

The article you link to doesn’t have that information in it.

[John F. Carr]

I think of abortion clinic protesters as having a higher income than those areas. I wonder if they simply don't want to go slumming. When I think abortion protests, I think Brookline, Massachusetts, which is nice for an inner suburb (9,000 people per square mile, median family income $120,000). Most famously, John Salvi killed two people there.

[Kleppe]

"My daughter works at Planned Parenthood Westchester."

The rotten apple doesn't fall far from the tree.

[Sarcastr0]

Wank

[Alpheus W Drinkwater]

Mute

[Noscitur a sociis]

Here, I think we are seeing a redux of Acheson Hotels, LLC v. Laufer

I think there’s a pretty important difference between a plaintiff trying to make a case moot by voluntarily dismissing a complaint, and a defendant doing so by giving the plaintiff everything they’re asking for.

[LawTalkingGuy]

Classic example of Blackman lacking any practical sense combined with his penchant for thinking the Supreme Court is the end all be all governance. And by “the” I mean “this” Supreme Court since he obviously didn’t think this about other iterations.

Negotiation to avoid bad judicial outcomes is central to the American legal system. Whether it’s paying out a settlement to avoid a large damages award at trial, taking a low settlement offer to avoid a bad summary judgment ruling, or lobbying for a local legal change to avoid creating a bad legal precedent, it happens thousands of times every day.

Would he be crying about a council granting a variance on the advice of the law director because he didn’t think they should risk a state court challenge to parts of the zoning code? No. Of course not. But since it’s abortion and the Supreme Court they’re “evading review.” What a clown.

[Armchair]

If this was an isolated case, or during the initial review, or even during the circuit court review, you might have a point.

But when the law is firmly defended in district court, then firmly defended in circuit court, and "only" when it gets to the SCOTUS, there's a sudden change....it's designed to evade review by the SCOTUS, which would have nation-wide effects. It's those nation-wide effects PP is looking to avoid.

This should be recognized, and the case taken up regardless. Otherwise the next challenge will take a year and countless more dollars.

[LawTalkingGuy]

“designed to evade review by the SCOTUS, which would have nation-wide effects. It’s those nation-wide effects PP is looking to avoid.“

So, who cares? An organization is perfectly entitled to try and avoid what it thinks are bad long term effects by getting out of bad litigation. People and companies do it every day.

“This should be recognized, and the case taken up regardless.”

That’s called issuing an advisory opinion and is bad. Courts shouldn’t do that. And if SCOTUS is really a “court” and not simply a supreme governing council, it wouldn’t do such a thing. It’d be as dumb as a trial court insisting on continuing a car accident case because it’s pretty sure the defendant isn’t liable even though he paid a settlement. If you insist this is different because of “nationwide effects” or “tax dollars” then congratulations you’re admitting it’s not a court dispensing justice between actually adverse parties but a supreme policy making entity with unlimited power to create the law as it sees fit.

[TwelveInchPianist]

"That’s called issuing an advisory opinion and is bad. Courts shouldn’t do that."

Well, it's called voluntary cessation and it generally doesn't moot a case.

[LawTalkingGuy]

That only applies between the parties. Is Westchester going to repass the ordinance it just repealed after lobbying? No. If it’s not then the court would be issuing an advisory opinion because there is no longer a conflict.

[TwelveInchPianist]

"Is Westchester going to repass the ordinance it just repealed after lobbying? No."

Unless Planned Parenthood writes another letter reversing its position again, I suppose.

[LawTalkingGuy]

Well is there any evidence of that in the record?

[TwelveInchPianist]

Evidence of what Planned Parenthood will do? What Westchester County will do?

As the OP points out, the lobbying appears to be strategically coordinated to try to moot the case, which is what the voluntary cessation doctrine is designed to avoid.

[LawTalkingGuy]

The voluntary cessation doctrine is designed to not let mootness allow the same defendant continue to do the same harmful conduct on a half hearted promise it won’t. That’s not what you or Blackman are suggesting. And that’s not what’s happening here.

Consider a case where Company A is in the middle of a CWA citizens’ suit because it’s discharging waste into a river. After some negotiation and some help by the citizens group Company A comes up with a plan to stop the discharges. The citizens and the company represent to the court that the conduct has voluntarily ceased.

Now imagine the Court thinks the citizens group only worked with Company A on a solution because it was worried that the current Court is actually hostile to the CWA and continuing the suit would lead to bad precedent overall.

There is nothing in the record to indicate that A will resume its discharges but it knows companies B and C haven’t done the work that A has to prevent future discharge. Can it still exercise jurisdiction over A and the citizens group because non-parties can hypothetically still violate the CWA? No. Of course they can’t.

But that’s basically what Blackman is suggesting! One town doesn’t have this law anymore after lobbying but others might so they’ll continue to exercise jurisdiction? That’s absolutely ridiculous and not how the voluntary cessation doctrine works. And you know that.

[Noscitur a sociis]

No, it’s designed to prevent someone from being able to continue the challenged conduct without a court evaluating it. If people actually stop the challenged conduct before the litigation is over, that’s generally considered a good thing.

[David Nieporent]

Well, it’s called voluntary cessation and it generally doesn’t moot a case.

It generally does moot a case when the voluntary cessation involves repealing the law in question. (If the county had said, "We're not going to enforce this law anymore," that would be a different story. But it actually repealed it.)

It's important to understand that the evil that the voluntary cessation doctrine is meant to avoid is not "Oh, the court won't get a chance to rule on an issue and we really want it to." The evil that it's meant to avoid is temporary cessation — that as soon as the case is dismissed, the defendant will go back to doing the thing that's being challenged.

[Armchair]

"So who cares?"
All the other people who are having their first amendment rights infringed upon by similar laws in other jurisdictions.

"That’s called issuing an advisory opinion and is bad"
No, it's called reversing a bad decision the SCOTUS made previously, that is the only thing that allows these bad laws to stand nationwide. The 2nd Circuit was clear...they would've struck this law down, except for the old SCOTUS ruling. Heck, even Westchester county doubted the law was legal...except for this dubious SCOTUS ruling (Hill v Colorado). But the only way for the ruling to be overturned was for the SCOTUS itself to do it...And if it didn't make it there because it was seemingly always moot "just before" the case.

In many ways, this is like Brown v Board of Education. By the time it made it to the SCOTUS, Kansas was already de-segregating its Elementary schools. The case could have been simply declared moot. And Plessy could have simply continued to stand. But, the court decided to overturn Plessy.

[Krayt]

"He didn't steal from me. At the last second, I chose voluntarily to give him my stuff."

[LawTalkingGuy]

“Here, we have a naked effort to evade Supreme Court review.”

So? I mean seriously, so what? They’re not the end all be all of governance in this country as much as you’d like to think so.

[Jason Cavanaugh]

I don't recall Blackman complaining about SB 8 attempting to evade judicial review.

Of course, he's a fucking hypocrite, so that might have been why.

[LawTalkingGuy]

Hypocrite gives him way too much credit. It suggests that he’s actually self aware and is simply
being a disingenuous hack to promote his goals. I used to think that too. But over the years I’ve begun to realize he might just an enormous dumbass.

[Commenter_XY]

Wait, was SB8 strategically mooted? Or was that something different (meaning, a case specifically constructed to get around specific laws in a specific jurisdiction)?

They are two different moral/ethical questions, right?

[Sarcastr0]

SB8 was a law designed to evade review, not a party making a pretty normal litigation choice.

[Doug Heffernan]

He did the opposite. He complained about those that defer to judicial supremacy over local self government. But he is not doing that sort of comparison here. One could say it is because he is a hack, but that might he giving him too much credit. He is not that clever.

[LawTalkingGuy]

If he were genuinely clever he would have stayed far away from complaining about “judicial supremacy” as his way to attack Roe/Obergefell. The conservative legal project clearly involves flexing judicial muscle against elected branches in all sorts of areas. So it’s just extremely dumb to be like: judicial supremacy bad! Then cheer the Court on as it strikes down laws and policies.

[Noscitur a sociis]

Not only did he not complain, he gushed ad nauseam about what a genius the architect of the bill was for coming up with that strategy.

(In addition to being a hypocrite, Prof. Blackman was also wrong: had Dobbs not rendered the whole thin pg moot, SB 8 would have been struck down in short order, just not quite as short an order as if it had been structured more conventionally.)

[Brett Bellmore]

SB 8 was a kind of statutory timed munition, actually; It was only designed to survive lower court review long enough to actually reach the Supreme court. But I thought it was clever, too. About 150% clever.

[Rev. Arthur L. Kirkland]

Superstition-addled, authoritarian boors have rights, too.

[The Margrave of Azilia]

They have such rights as their betters may choose to grant them.

[Life of Brian]

You know, I think you've finally got it!

[SRG2]

IANAL, but if a case is mooted, there is surely no longer a case or controversy for the SC to try?

[Dan Schiavetta]

In law school I noticed that the original Constitution is written so that the letter “s” sometimes is actually (if you look closely) “f”. The Supreme Court actually hears “cafes and controversies”. I do think this changes the analysis.

[Krayt]

Speaking of cafes and controversies, a trenta iced coffee with flavor shot from Starbuck's is over $6.00.

A 5¢ cup of coffee it ain't.

[Dan Schiavetta]

When I was a teenager in the family deli I poured perfectly good cups of coffee which we sold for 25¢. It was just "coffee", with no adjectives, and it was as good as what we pay $5 for now. That and a buttered roll (also 25¢) was the best breakfast I remember.

[Brett Bellmore]

To be fair, since I was a teen there's been about 730% inflation, which probably explains why when I go grocery shopping I'm always a bit shocked that the chicken isn't 25 cents a pound.

[Sarcastr0]

Cupa coffee is like $1.75 these days.

[Mr. Bumble]

No more Automat.

[The Margrave of Azilia]

Maybe someone could test such a law (one which is still on the books) by getting prosecuted under it? Perhaps, with cooperation of a sympathetic police department, they can arrange for some elderly woman to get arrested for offering a “client” a pamphlet about life-affirming alternatives to abortion. Then pursue that case up to the Supreme Court.

[Lee Moore]

It wouldn't get there, because the municipality would repeal the law as soon as SCOTUS granted cert.

[Nameless But Highly Opinionated]

Courts exist to enforce the law, not to interpret it. The fact that we might want to hear the interpretation a court would give to explain its rationale for giving orders doesn't change the fact that the court has to have orders to give to be a court.

There's no legal difference between the justices' promogulation of an interpretation, at some random time when no case is or was pending; and the justices doing the same thing when there recently was a (not moot) case. If they're going to go on giving advisory opinions like this they should stop being cowards and do it openly (and on their own dime).

[fafalone]

A conservative complaining about underhanded legal tactics... I'm dying laughing

[Doug Heffernan]

Westchester county is pretty big. Maybe the abortion clinics could be put in the northern, more rural, part of the county on an agricultural farm. Then both union organizers and abortion protesters could be kept out at the gate.

The mistake is putting the clinics so close to the street/sidewalk. Some kind of shuttle service could be offered to the more upstate part of Westchester from the lower parts of Westchester. Probably would be cheaper than the costs of security.

[Rev. Arthur L. Kirkland]

Union organizers, anti-abortion boors and animal welfare advocates.

Relax. The clingers will get stomped into irrelevance soon enough, and anti-abortion absolutists — like gun nuts, religious zealots, and everyone else who aligned with the losing side of the culture war — will experience the practical cost of choosing sides unwisely.

[Religion and Politics, my life]

Always you are dumb. Most of the new anti-abortion groups are non-religious and often Democrats or Independents

SECULAR PRO-lIFE

PRO-LIFE ALLIANCE OF GAYS AND LESBIANS + HUMAN RIGHTS START WHEN HUMAN LIFE BEGINS

THE AMERICAN ASSOCIATION OF PRO-LIFE OBSTETRICIANS AND GYNECOLOGISTS BOARD CERTIFIED. PROFESSIONAL. MEDICAL EXPERTS IN THE PRO-LIFE MOVEMENT SINCE 1973

Democrats for Life

PRogressive Anti-abortion Uprising

Feminsts for Life

But you are the Unabomber on here, you will laugh at your court trial , and talk about your Scientology beliefs. I have patience but I know that someday you will be found out, I’ve known hundreds of people like you.

[Rev. Arthur L. Kirkland]

Most anti-abortion absolutists -- especially the boors who harass people outside clinics -- are religious kooks. And lousy people.

[Nige]

Who are you trying to kid? Us? Or just yourself?

[Area Man]

I could be wrong because I don’t practice federal civil law, but my understanding is that, if the plaintiff sought only injunctive relief, then this case would be moot (but Munsingwear vacatur would apply). But if they sought injunctive relief *and/or* damages, then it isn’t because they can still recover for the past violation of their constitutional rights.

Again, I very well could be wrong. Thoughts from anyone (who isn’t a troll)?

[LawTalkingGuy]

Yeah that’s ordinarily the rule. But the plaintiff can also dismiss their damages claims if any. I don’t think a court can or should continue to exercise jurisdiction when a party no longer requires injunctive/declaratory relief and doesn’t seek damages. I mean…what would there be to try?

[Area Man]

Without the ability to get an injunction/declaration, and without a damages claim, I don't think courts can exercise jurisdiction under New York State Rifle & Pistol Association, Inc. v. City of New York, 140 S. Ct. 1525 (2020) (per curiam). So, now that the ordinance isn't around, without a damages claim, I don't think this case can proceed. But if she seeks even $1 in damages, I think the case is still live. Uzuegbunam v. Preczewski, 141 S. Ct. 792 (2021). I just don't know if she has actually sought damages.

[Nameless But Highly Opinionated]

You are correct.

And if she had suffered legal harm*, if someone were to ask “what remedy does she have for violated rights?” the answer would be tort law. And it would be sufficient address lawbreaking under color of authority.

Now if courts are throwing out tort suits against government employees because “the law wasn’t clearly established” that messes things up for her. But courts have themselves to blame for the inadequacies of tort suits against govt employees. Qualified immunity (ignorance-of-law-immunity) is something that didn’t exist until the mid-20th century. Courts invented it, likely without thinking it through.

*I’m quite skeptical that she has, at least not the kind that translates into money damages.

[ReaderY]

A party that concludes it is going to lose is entitled to moot the suit by acceding to the plaintiffs’ demands. There’s nothing particularly nefarious about it. The law in general favors settlement. What happened here was, if Professor Blackman’s characterization of its effect is correct, the functional equivalent of settling, which also prevents courts from reaching final conclusions on questions. I just don’t understand why Professor Blackman characterizes belatedly concluding that Professor Blackman has the better legal argument as evidence of a lack of integrity.

[Rev. Arthur L. Kirkland]

What is our South Texas law students learning?

[ReaderY]

I think Professor Blackman is making an argument similar to the one made about Senator McConnell’s switcheroo between the Garland and Barrett nominations. If one defends Senator McConnell on this point, and Professor Blackman certainly did, then it’s hard to see how one can fault Planned Parenthood for doing pretty much the same thing.

Both based their decisions on what would advance their ideological agenda, but sold those decisions in each case as what would be the public good.

Professor Blackman seems to be taking the position that he has an ethical duty to advance his side’s position by making any argument analyzed as having a chance of sticking in the particular circumstances. And that includes arguing that when the other side does exactly the same thing, it is acting unethically.

[SRG2]

"Why then, the case is altered!" (or the cafe...)

[apedad]

"But a funny thing happened three weeks later: Planned Parenthood had a change of heart!"

No they didn't.

They looked at the efficacy of the law and decided it was not working as hoped for.

Their 'heart' is still in the RIGHT place.

[Religion and Politics, my life]

Apedad is wrong and that is how several groups see it SECULAR PRO-lIFE

PRO-LIFE ALLIANCE OF GAYS AND LESBIANS + HUMAN RIGHTS START WHEN HUMAN LIFE BEGINS

Democrats for Life

PRogressive Anti-abortion Uprising

Feminsts for Life

[bernard11]

Debra Vitagliano, who counseled women near abortion clinics,

Yeah. I bet she did.

[Idihax]

I bet you and the Rev. Kirkland counsel young boys in the shower.

[Alpheus W Drinkwater]

Funny, I copied the exact same text to make the exact same point. The term "counseled" is being stretched to the breaking point here.

[John F. Carr]

In its argument against Supreme Court review Westchester admits the law is not needed. In a just world, judicial estoppel would apply if the county re-enacted the law. That makes the case for denial of review stronger than the ordinary voluntary cessation case.

If another government enacts a similar law challengers can point to Westchester as evidence the law is not necessary or effective. A court can distinguish the new case from binding Supreme Court precedent.

[tkamenick]

Why would the mooting even work? If the plaintiff was deterred at some point from asserting her First Amendment rights, that's sufficient for a declaratory judgment and nominal damages, no?

[loki13]

It was a pre-enforcement challenge under 1983, so (1) there were no compensatory damages, and (2) there are no nominal damages (as the policy was not enforced against anyone).