John Paul Stevens: The Supreme Court’s worst decision of my tenure

After the City and state repealed the law that the plaintiffs challenged, there was nothing left for the Supreme Court to do; indeed, the Constitution prevents it from doing anything at all. Article III allows the Court to hear “cases and controversies.” Given the changes in state and City law, there is no longer a case or controversy about whether New York residents can take their handguns to shooting ranges or second homes. New York City and State have allowed them to do that, two times over.

The case has become what’s known as “moot”—there is nothing left for the Court to decide, and there is nothing a judicial decision can provide the plaintiffs. In this case, the plaintiffs sought only injunctive and declaratory relief—that is, a prohibition to ensure that New York City would stop enforcing its law. The plaintiffs did not request monetary damages from any previous harm resulting from the law. And because they requested only that a court stop New York City from enforcing its law, the plaintiffs have received everything they asked for.

The plaintiffs, however, would like the Court to hear the case, perhaps because they expect that the newest justices, Neil Gorsuch and Brett Kavanaugh, will aggressively interpret the Second Amendment and invalidate gun-control legislation. Given that the case is transparently moot, the plaintiffs are relying on an exception known as the “voluntary cessation” rule. The rule allows a court to decide a case that has become moot because a defendant voluntarily ceased its conduct.

But the voluntary-cessation exception exists to prevent defendants from temporarily stopping their conduct, only to restart it once a court dismisses a case for being moot. That’s not a risk here, because New York City and New York State would both have to change their laws again to prevent the plaintiffs from transporting their handguns. While that’s theoretically possible, it would require a change in the law—a much more significant obstacle than a defendant’s mere change of heart, which is what the voluntary-cessation exception is meant to protect against. And it is inappropriate for the Court to presume that the City and state, both government actors, are acting in bad faith and will reverse course to reinstate their previous laws.

In making the argument that their case still be heard, the plaintiffs reveal a worrisome, implicit belief: The courts are the only forum for remedying or stopping unconstitutional conduct. This is not—nor should it be—the case. The political branches (including state legislatures and state executives) can remedy unconstitutional conduct as well; they may even be preferable to courts, given that they are democratically elected and accountable to the people—something the Constitution values.