Dec 8, 2009

Posted in FantasySCOTUS

SCOTUS First Read Alvarez v. Smith: Minimalist Court punted on Mootness Grounds, Did Not Consider Property Rights/Due Process Issues. But why not DIG it if settled?


I just finished skimming Alvarez v. Smith. This case asked whether local law enforcement agencies may seize and retain custody indefinitely of personal property without judicial or administrative review of the lawfulness of the continued detention of the property. See ScotusWIKI for background.

Rather than considering the due process issues, or commenting on the sanctity of property rights (see Ilya Somin’s articles on that topic (here, here, and here)  the Court punted it an reversed on mootness grounds. And not only did they dismiss on mootness grounds, but they vacated the lower opinion.

Why did the dismiss for mootness? Well, it seems the parties had already settled the case. From Justice Stevens’s concurrnece:

At the time we granted certiorari on February 23,2009, petitioner had already resolved the underlying property disputes for five of the six named respondents.See ante, at 4, 8–9. It was entirely predictable that thefinal settlement would soon follow.

So, why did the Supreme Court continue the case. Why wasn’t it DIG’d (Dismissed as Improvidently Granted)? Justice Stevens poses that question in his concurrence:

It has become clear that the Court was overhasty in deciding to review this case; the improvidence of our grant provides an additional reason why we should not vacate the work product of our colleagues on the Court of Appeals. I respectfully dissent from Part III [vacating lower opinion] of the Court’s opinion and from its judgment.

The Supreme Court’s mootness and vacate analysis didn’t break any new grounds. They found that this was not a Wisconsin Right to Life case of Capable of Repetition/Evading Review and because the mootness was due to a settlement, rather than “happenstance,” the losing party”surrender[ed] his claim to the equitable remedy of vacatur.”

Avoidance doctrines like standing and mootness always trouble me because they provide the Court with any easy out to consider broad and important Constitutional issues. Minimalists, in the Cass Sunstein camp, will likely praise this decision. But the Illinois law in question was absolutely egregious. The people in this case had their property taken from them for months and years without a hearing or a warrant. Because of this minimalist take, and this practice can continue.

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  • troll_dc2

    “Avoidance doctrines like standing and mootness always trouble me because they provide the Court with any easy out to consider broad and important Constitutional issues. Minimalists, in the Cass Sunstein camp, will likely praise this decision. But the Illinois law in question was absolutely egregious. The people in this case had their property taken from them for months and years without a hearing or a warrant. Because of this minimalist take, and this practice can continue.”

    If you look at the history of the Supreme Court’s development of the various avoidance doctrines (standing, ripeness, mootness, etc.), you will see a consistent pattern of its use to forestall a particular outcome. It was heavily expanded during the eras in which Burger and Rehnquist were the chief justices. I think that the so-called conservatives used avoidance doctrines more often than did the so-called liberals, although I am not about to do a count.

  • troll_dc2

    Ruling-avoidance is a tactic tht was used mainly by conservative judges to avoid having a court make a substantive ruling that they might not like. If I had the time, energy, and resources to do so, I bet that I could prove by means of citation that the Supreme Court greatly expanded the avoidance repertoire in the last four decades, going far beyond anything that Frankfurter devised. (But I don’t have your resources [like Westlaw and law-review access], your time, or your energy.)

    • Josh Blackman

      The use of the avoidance doctrine last term in the voting rights case really irked me. If it is unconstitutional, strike it down. Don’t ask Congress to change it, or else. Thomas was correct in that case.