Capable of Repetition, Yet Evading Review

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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 has generally declined to deem cases moot that present issues or disputes that are “capable of repetition, yet evading review.” 1 This exception to the mootness doctrine applies “only in exceptional situations” 2 in which (1) “the challenged action is in its duration too short to be fully litigated prior to cessation or expiration;” and (2) “there is a reasonable expectation that the same complaining party will be subject to the same action again.” 3 According to the Court, if this exception to mootness did not exist, then certain types of time-sensitive controversies would become effectively unreviewable by the courts.4

The classic example of a dispute that is “capable of repetition, yet evading review” is a pregnant woman’s constitutional challenge to an abortion regulation.5 Once a woman gives birth, abortion is no longer an option for terminating that particular pregnancy. However, litigation of national political significance can rarely be fully resolved in a mere nine months; “the normal 266-day human gestation period is so short that [a] pregnancy will come to term before” the parties and the court could realistically litigate a constitutional challenge to an abortion statute to its conclusion.6 Thus, if a challenge to an abortion regulation became moot as soon as the challenger gave birth, “pregnancy litigation seldom w[ould] survive much beyond the trial stage, and appellate review w[ould] be effectively denied.” 7 Because the Supreme Court has decided that “[o]ur law should not be that rigid,” the Court ruled in its 1973 opinion in Roe v. Wade that “[p]regnancy provides a classic justification for a conclusion of nonmootness.” 8 The Roe Court reasoned that, because “[p]regnancy often comes more than once to the same woman, and . . . if man is to survive, it will always be with us,” challenges to the constitutionality of abortion statutes usually will not become moot at the conclusion of an individual challenger’s pregnancy.9

The Court has deemed certain controversies “capable of repetition, yet evading review” outside the abortion context as well.10 For example, in Federal Election Commission v. Wisconsin Right to Life, Inc., an advocacy organization claimed that restrictions on “electioneering communications” established by the Bipartisan Campaign Reform Act of 2002 unconstitutionally prohibited the organization from broadcasting certain political advertisements shortly before the 2004 election.11 Even though the case did not reach the Supreme Court until long after the 2004 election had passed, the Court nonetheless concluded that the case was not moot.12 The Court reasoned that the organization “credibly claimed that it planned on running ‘materially similar’ future targeted broadcast ads” in advance of future elections,13 and the period between elections was too short to allow the organization sufficient time to fully litigate its constitutional challenges sufficiently in advance of the election date.14

By contrast, the Court determined that the constitutional challenge in the DeFunis case mentioned above was not “capable of repetition, yet evading review.” 15 To reiterate, the petitioner in DeFunis claimed that certain law school admissions practices and criteria unconstitutionally discriminated against him on the basis of race.16 While the case was pending, however, the petitioner began taking classes at the law school, and was just about to receive his diploma.17 Unlike the challenger to the abortion statute in Roe, who could very well have become pregnant again in the future,18 the petitioner in DeFunis would “never again be required to run the gantlet of the Law School’s admissions process” once he received his juris doctorate.19 The DeFunis Court therefore concluded that the petitioner’s constitutional challenges were “not ‘capable of repetition’ so far as [the petitioner was] concerned.” 20 The Court further opined that challenges raised by other disappointed applicants would not evade future review either, as the Court had “no reason to suppose that a subsequent case attacking [the law school’s admission] procedures w[ould] not come with relative speed to th[e] Court.” 21

1: See, e.g., Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969, 1976 (2016); Turner v. Rogers, 564 U.S. 431, 439–41 (2011); Davis v. FEC, 554 U.S. 724, 735–36 (2008); FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 462 (2007); Norman v. Reed, 502 U.S. 279, 287–88 (1992); Int’l Org. of Masters, Mates & Pilots v. Brown, 498 U.S. 466, 473 (1991); Meyer v. Grant, 486 U.S. 414, 417 n.2 (1988); Honig v. Doe, 484 U.S. 305, 317–23 (1988); Burlington N. R.R. v. Bhd. of Maint. of Way Emps., 481 U.S. 429, 436 n.4 (1987); Brock v. Roadway Express, Inc., 481 U.S. 252, 257–58 (1987); Cal. Coastal Comm’n v. Granite Rock Co., 480 U.S. 572, 577–78 (1987); Press-Enter. Co. v. Super. Ct. of Cal. for Cty. of Riverside, 478 U.S. 1, 6 (1986); Globe Newspaper Co. v. Super. Ct. for Cty. of Norfolk, 457 U.S. 596, 603 (1982); Democratic Party of U.S. v. Wisconsin ex rel. La Follette, 450 U.S. 107, 115 n.13 (1981); Gannett Co. v. DePasquale, 443 U.S. 368, 377 (1979); Bell v. Wolfish, 441 U.S. 520, 526 n.5 (1979); First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765, 774 (1978); United States v. N.Y. Tel. Co., 434 U.S. 159, 165 n.6 (1977); Neb. Press Ass’n v. Stuart, 427 U.S. 539, 546–47 (1976); Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975); Super Tire Eng’g Co. v. McCorkle, 416 U.S. 115, 125–27 (1974); Storer v. Brown, 415 U.S. 724, 737 n.8 (1974); Dunn v. Blumstein, 405 U.S. 330, 333 n.2 (1972); S. Pac. Terminal Co. v. ICC, 219 U.S. 498, 514–16 (1911). But see, e.g., United States v. Sanchez-Gomez, 138 S. Ct. 1532, 1540–42 (2018) (rejecting litigants’ argument that defendants’ allegedly unlawful practice was capable of repetition yet evading review); Alvarez v. Smith, 558 U.S. 87, 93–94 (2009) (same); Spencer v. Kemna, 523 U.S. 1, 17–18 (1998) (same); Lewis v. Cont’l Bank Corp., 494 U.S. 472, 481–82 (1990) (same); Lane v. Williams, 455 U.S. 624, 633–34 (1982) (same); Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 187 (1979) (same); Kremens v. Bartley, 431 U.S. 119, 133 (1977) (same); Weinstein v. Bradford, 423 U.S. 147, 148–49 (1975) (per curiam) (same); Preiser v. Newkirk, 422 U.S. 395, 403 (1975) (same); Diffenderfer v. Cent. Baptist Church of Miami, Fla., Inc., 404 U.S. 412, 414 (1972) (per curiam) (same).
2: Kingdomware Techs., 136 S. Ct. at 1976 (quoting Spencer, 523 U.S. at 17).
3: United States v. Juvenile Male, 564 U.S. 932, 938 (2011) (per curiam) (quoting Spencer, 523 U.S. at 17). See also, e.g., Sanchez-Gomez, 138 S. Ct. at 1540 (same); Kingdomware Techs., 136 S. Ct. at 1976 (same); Turner, 564 U.S. at 439–40 (quoting Weinstein, 423 U.S. at 149) (same); Wis. Right to Life, 551 U.S. at 462 (same); Lewis, 494 U.S. at 482 (same); Meyer, 486 U.S. at 417 n.2 (quoting Murphy v. Hunt, 455 U.S. 478, 482 (1982)) (per curiam) (same); Reeves, Inc. v. Stake, 447 U.S. 429, 434 n.5 (1980) (same); Gannett, 443 U.S. at 377 (same); Ill. State Bd. of Elections, 440 U.S. at 187 (same); SEC v. Sloan, 436 U.S. 103, 109 (1978) (same); Bellotti, 435 U.S. at 774 (same). The Court has explained, however, that the “capable of repetition yet evading review” doctrine “will not revive a dispute which became moot before the action commenced.” Renne v. Geary, 501 U.S. 312, 320 (1991).
4: See, e.g., Sosna v. Iowa, 419 U.S. 393, 400 (1975) ( “[T]he case before us is one in which state officials will undoubtedly continue to enforce the challenged statute and yet, because of the passage of time, no single challenger will remain subject to its restrictions for the period necessary to see such a lawsuit to its conclusion.” ).
5: See Roe v. Wade, 410 U.S. 113, 125 (1973) (quoting S. Pac. Terminal Co. v. ICC, 219 U.S. 498, 515 (1911)).
See generally Amdt14.S1.6.4.1 Abortion, Roe v. Wade, and Pre-Dobbs Doctrine (analyzing Supreme Court jurisprudence regarding abortion).But see Azar v. Garza, 138 S. Ct. 1790, 1791–93 (2018) (dismissing abortion case as moot without applying, analyzing, or mentioning the “capable of repetition yet evading review” doctrine).
6: See Roe, 410 U.S. at 125.
7: See id.
8: Id.
9: Id. (quoting S. Pac. Terminal Co., 219 U.S. at 515). See also Singleton v. Wulff, 428 U.S. 106, 117 (1976) ( “A woman who is no longer pregnant may nonetheless retain the right to litigate the point because it is ‘capable of repetition yet evading review.’” ) (quoting Roe, 410 U.S. at 124–25).
10: See supra note 1.
11: FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 457–60 (2007).
12: Id. at 462–64.
13: Id. at 463.
14: See id. at 462–63. See also Davis v. FEC, 554 U.S. 724, 735–36 (2008) (rejecting mootness challenge in case whose facts “closely resemble[d]” those at issue in Wisconsin Right to Life).
15: 416 U.S. 312, 318–19 (1974).
16: Id. at 314–15.
17: Id. at 315–17.
18: See Roe v. Wade, 410 U.S. 113, 125 (1973).
19: 416 U.S. at 319.
20: Id.
21: Id.