Fisher has arrived, bringing with it the noisy public debate over affirmative action that Grutter had hushed for what turned out to be only a brief interregnum. Commentators are understandably focused on how the Court (i.e., Justice Kennedy) will resolve the constitutional question presented in Fisher. But I, for at least one more post, will continue to play the skunk at the garden party by discussing the treacherous procedural landscape the Court must traverse to reach that question. For the skeptics who continue to think I’m tilting at windmills, read on. There is a case currently on the Court’s docket that could spell Fisher’s fate.
That case is Knox v. SEIU (h/t: commenter Sean M.), a compelled union fees case that the Court agreed to hear last June. In the midst of briefing, the respondent labor union sent a notice to all plaintiff class members offering them a full refund of their fees. Each notice had a $1 bill attached to satisfy the district court’s award of nominal damages. The union then filed a motion in the Supreme Court asking that it dismiss the case as moot. It argued that there was nothing more for the plaintiff class to win from the case. The union also did not object to its favorable appeals court ruling being vacated, which is the typical consequence of mooting a case at the Supreme Court. The Court consolidated the motion to dismiss with the case’s merits and debated both during oral argument in January.
Readers who have followed my previous posts on Fisher will recognize parallels between the two cases with respect to mootness:
- A fee refund, and potentially nominal damages, are the only forms of relief at issue in the cases. (Fisher did not explicitly request nominal damages in her complaint, but she contends now that doing so was unnecessary.) At least at the Supreme Court stage, neither declaratory nor injunctive relief is at issue in either case. The monetary relief is paramount.
- The mootness claims did not arise in either case until the respondents refunded the contested fees, or threatened to do so, after cert. was granted. (Texas has so far only observed that it could moot Fisher’s case via a fee refund. I discuss below whether it will.)
- An issue relevant to both cases is whether a defendant can moot a nominal damages claim by simply handing over $1. The Knox petitioners say “no”; the respondents disagree. If the Court somehow reads nominal damages into the Fisher case (see item #3 in my prior post), the Court’s thoughts on that question in Knox will have implications for Fisher.
- Both cases raise the question whether the availability of a refund is sufficient to moot a case. In Knox, the union did not disburse all of the refunds automatically: some plaintiffs had to mail in a refund request to claim the money. Somewhat relatedly, Fisher will probably reject any refund offer from Texas. Whether a plaintiff’s opportunity to be made whole is sufficient to moot her case, even when she declines that opportunity, is a question common to both cases.
- Another common issue is whether unrequested declaratory relief can save the day for the petitioners if all monetary claims are otherwise satisfied. (See item #2 in my prior post.)
- A final common issue is whether an exception to mootness should obtain in either case. Although the plaintiffs in Knox are not seeking any prospective relief, they argue that the “voluntary cessation” exception to mootness should apply because the union is free to resume charging the challenged fees. In Fisher, it’s the “capable of repetition, yet evading review” exception. (The Knox petitioners also raised that exception during oral argument, even though it was not briefed.) At least in Fisher, an attempt to apply that exception will run into several barriers, including a 1974 Supreme Court precedent. (See item #4 in my prior post.)
Because of their parallel procedural postures, Knox may allow us to see the future for Fisher. If (1) the Court decides that Knox is moot and (2) Texas tenders $101 to Fisher ($100 in refunded fees plus an extra dollar of nominal damages for good measure), then finding jurisdiction in Fisher will be a tall order.
So what about those two “if”s?
1. Will the Court decide that Knox is moot? It is never wise to predict Supreme Court decisions unless you’re Tom Goldstein, but I’ll assess the few available tea leaves. The mootness question occupied roughly half of the oral argument time in January, a strong indication that the Court thinks mootness is a serious concern. Five Justices focused on it during argument: Chief Justice Roberts appeared to be most hostile to the respondent’s mootness argument, while Justices Kennedy and Ginsburg seemed more receptive. Justices Alito and Kagan asked questions about it but did not tip their hands. Based only on the Justices’ questions, it is hard to guess where the Court will go, but a post-argument recap at SCOTUSblog concluded that “[t]here is a strong argument that this case is moot.” It is tempting to ponder, too, whether the Court’s decision on mootness in Knox might be influenced by an impulse to preserve or sink Fisher down the line.
[UPDATE (6/21/2012): The Court decided that Knox is not moot. See my post-Knox post here.]
2. Will Texas offer Fisher the money? If Knox comes out in Texas’s favor, Texas must choose between two evils. If it doesn’t pay up, there is a reasonably high likelihood that the Court will, either narrowly or broadly, invalidate UT-Austin’s use of race in undergraduate admissions. On the other hand, if Texas successfully moots the case, its Fifth Circuit victory evaporates, and a fresh lawsuit will probably emerge that patches up the procedural potholes in this one. One wonders: won’t the eventual Supreme Court ruling in that follow-up case be the same as in Fisher’s? Why not get this over with now and save Texas taxpayers the cost of defending a second lawsuit?
Well, for Texas, there are some considerations that weigh in favor of delay. For one thing, mooting Fisher gives UT-Austin several more years to use, and perhaps tweak, its current affirmative action practice. For another, Justice Kagan will not be recused from the future case, and that could change the cert. calculus. In Fisher, the four more conservative Justices (Roberts, Scalia, Thomas, Alito) probably saw no downside to granting cert.: at worst, Justice Kennedy would join the three more liberal Justices, resulting in a nonprecedential 4-4 split. With Justice Kagan participating, though, there is a possibility, albeit a small one, that a majority of the Court would uphold Texas’s program. That might dissuade the more conservative Justices from voting to grant cert. in the next case. Pretty unlikely, but possible.
What’s more likely is that the Court will look different when the next case comes up for consideration. If Texas moots Fisher, another five years or so will elapse before the Court ultimately rules in the follow-up case. A lot can happen in five years. That’s two presidential terms from now. The Court’s membership could be slightly different, and it might favor Texas’s position more than today’s does. All told, that’s far from a guarantee of a different outcome, but waiting for the Court to change is perhaps Texas’s best, if not only, hope.
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A postscript. Tony Mauro reports that Fisher’s attorney’s response to Texas’s potentially mooting the case is that “other damages could be claimed if the case goes forward—including the tuition differential at LSU and possible lost wages because Fisher did not get into UT.” As I noted in my previous post, Alvarez v. Smith (2009) appears to bar the Court’s consideration of that possibility in Fisher’s current posture.