What If A Supreme Court Case Becomes Moot Before June?

Last night (or was it early this morning?), I commented on Justice Sotomayor’s remarks that litigants in Supreme Court cases live in “infamy.” I wrote that she is only half-right. Litigants who promote liberal causes are celebrated. Litigants who promote conservative causes are excoriated. I discussed Abgail Fisher at some length, and could add some more names. Coach Kennedy. Jack Phillips of Masterpiece Cakeshop. The Little Sisters of the Poor. The Green Family, owner of Hobby Lobby. Kaj Ahlburg and Mary Brown (the plaintiffs in what became NFIB v. Sebelius.) Dick Heller. Alan Bakke. All of the plaintiffs that contested COVID regulations. (Trust me, I know how hard it was to find Jewish plaintiffs who were willing to challenge Governor Cuomo’s lockdown measures.)  And so on. If we want to go even further back, we could include poor Joseph Lochner. The immigrant baker’s name has become associated with the worst way of deciding cases.

King v. Burwell also comes to mind, and it relates further to Hecox. In King, plaintiffs challenged an Obama Administration policy that provided Affordable Care Act subsidies in states that did not establish health insurance exchanges. The standing argument was a bit complex, and required plaintiffs to be in a particular low income band, but not too low that they would qualify from an exemption from the individual mandate penalty. There were four named plaintiffs. The Wall Street Journal hounded the plaintiffs to determine if in fact they met the criteria for standing. I recount this history in my second book, Unraveled:

The question of standing came to the forefront in February 2015 following a series of investigative reports published in The Wall Street Journal by Louise Radnofsky, Brent Kendall, and Jess Bravin. The articles raised doubts whether each of the four plaintiffs were indeed injured by the IRS rule. The lawyers at Jones Day told me that they had researched each of the questions raised in 2013 when the case was filed, and vigorously dismissed the allegations.

Consider how Rose Luck was treated:

The biggest riddle was the final plaintiff, Rose Luck. The Journal reported that Rose Luck’s declared address in the original complaint was the Americas Best Value Inn in Richmond. The receptionist at the motel told the enterprising reporters that Luck did not live there. Her residency was relevant, because insurance premiums are priced based on a person’s zip code. If the calculations were wrong because of an incorrect address, the unsubsidized price of insurance may be lower than 8%, and thus she would otherwise be eligible for an exemption from the individual mandate. Nicholas Bagley, the Michigan law professor, observed, “We don’t know where Luck now lives and what the price of a bronze plan is in her area. It’s thus hard to know whether, absent tax credits, she could reasonably expect to be exempt from the mandate penalty.”

Scoffing at the case, Washington & Lee law professor Timothy S. Jost told the Journal, “All of these plaintiffs are people they picked off the street for this litigation.”8 Jost was in the ballpark, at least for Luck. Carvin told me that they listed the motel as Luck’s address “because she was temporarily out of housing” when the case was filed. “I didn’t know what else we could do.” He added that reporters were camping outside of the other plaintiffs’ homes, trying to find out anything they could to upset the case. “We didn’t want to tell anybody this because the press was harassing these poor people.” In any event, it did not matter for purposes of the case. Luck “lives six blocks away from the motel. So it didn’t affect the premiums because she was in the same zip code.” Carvin described the Wall Street Journal’s reporting on the plaintiffs as “really tendentious and stupid. We had thought about all these issues that they raised.”

Luck was not given a glamor photoshoot in the Washington Post like Hecox.

Then there was Brenda Levy. Her claim would become moot if the Supreme Court took till June to decide the case.

Third was Brenda Levy. She was sixty-four at the time the case was argued, but would turn sixty-five, and become Medicare eligible, in June – right around the time when the Supreme Court would issue its decision. As a result, she would no longer be subject to future penalties under the individual mandate. However, Carvin explained to the Supreme Court that she was “obviously subject to the individual mandate well in advance of that” date, and therefore suffered an injury.

Of course, the Justices could have decided the case more quickly, but they ultimately found that at least one of the plaintiffs had standing.

During oral argument in Hecox, Justice Jackson asked if the plaintiff would graduate before the Supreme Court even decides the case.

JUSTICE JACKSON: Only for a few more months. What if –what if this decision doesn’t come out until June and she graduates in May?

Perhaps that should counsel the Justices to move with dispatch, and decide the case more quickly. But in this case, Hecox will not graduate in May 2026, but will need another semester or so.

MR. HURST: It’s my understanding at this point –I defer to my friends here. It’s my understanding at this point that May graduation is not possible.

JUSTICE JACKSON: For this individual?

MR. HURST: For this individual, that’s correct.

JUSTICE JACKSON: All right. Thank you.

Hecox’s counsel confirmed this timeline:

JUSTICE SOTOMAYOR: How –how about her graduating this year?

MS. HARTNETT: So, on that -

JUSTICE SOTOMAYOR: There was suggestion she might not.

MS. HARTNETT: As you can tell, we have –college students have their –so she is trying her best to get through college. I think at this point, and I am just basing it on what I know as of today, she’s unlikely to graduate by May, as my friend said, but is hoping to make –through summer credits, could graduate in the fall.

It seems Hecox started at Boise State in Fall 2019.

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