| One of the high-profile cases on the Supreme Court’s docket this term is Little v. Hecox. As framed by petitioners, the question presented is “[w]hether laws that seek to protect women’s and girls’ sports by limiting participation to women and girls based on sex violate the Equal Protection Clause of the Fourteenth Amendment.” Before the Court answers that question, though, the Justices must decide whether the case is now moot. | | Lindsay Hecox sued in federal district court in April 2020. Hecox, a transgender woman who sought to compete on the women’s track and cross-country teams at Boise State University (BSU) (where she is a student) challenged the constitutionality of the Idaho Fairness in Women’s Sports Act. That statute requires in-state sports programs at public educational institutions (and also private institutions that compete against them) to “designate,” “based on biological sex,” which students may participate, and provides that sports programs that are “designated for females, women, or girls shall not be open to students of the male [biological] sex.” In addition to Idaho Governor Bradley Little, Hecox named as defendants in her lawsuit the university and its president, various state educational officials, and others. Applying heightened scrutiny, the district court in August 2020 preliminarily enjoined the challenged statute on the ground it likely violates the Equal Protection Clause of the Fourteenth Amendment, and in June 2024 the Ninth Circuit (in an amended opinion) affirmed that injunction as applied to Hecox. The defendants filed a petition for certiorari, which Hecox opposed, on July 11, 2024. The Supreme Court granted the defendants’ petition on July 3, 2025 after its ruling in United States v. Skrmetti (holding that a Tennessee law banning puberty blockers and hormone therapy for the treatment of gender dysphoria in minors was subject to rational review under the Equal Protection Clause and was most likely valid). | | On September 2, Hecox, represented by the ACLU, filed with the Supreme Court a “suggestion of mootness” in her case. She explained that as a result of illness, her father’s death, negative publicity associated with the litigation, and her desire to focus on completing her graduation requirements, she had “decided to permanently withdraw and refrain from playing any women’s sports at BSU or [at any institution] in Idaho covered by [the Fairness in Women’s Sports Act],” and that she “firmly committed not to try out for or participate in any school-sponsored women’s sports covered by [the Act].” Hecox further stated that she had filed with the district court a Notice of Voluntary Dismissal to dismiss her entire complaint with prejudice (that is, without holding the door open to reinstituting the lawsuit). In light of that action, she argued to the Court, her case was now moot and (because she had sought dismissal with prejudice) her claims against the defendants could not recur. Therefore, she urged, the Court should vacate the Ninth Circuit’s judgment on mootness grounds and remand with a direction to dismiss the appeal in accordance with United States v. Munsingwear and related caselaw. With that disposition, Hecox stated, the defendants would “suffer no prejudice.” | | The defendants, though, opposed Hecox’s moves. They filed a motion in district court opposing dismissal there on the ground that Hecox had previously agreed to a stay of all “proceedings” in the district court while the case was on review at the Supreme Court. In so doing, defendants argued, Hecox had waived her right to dismiss, because a dismissal entailed a proceeding. (The district court has not yet determined whether to allow Hecox to dismiss her case.) The defendants (as respondents) also filed in the Supreme Court a response to Hecox’s suggestion of mootness in which they argue the case is not moot and should be resolved by the Court on the merits because: dismissal cannot occur on account of the agreed-to stay of district court proceedings; Hecox (still a student at BSU) might change her mind in the future and seek to play in women’s sports, so that her claims might recur; the Ninth Circuit’s decision in Hecox’s case has already been invoked as precedent in other Ninth Circuit cases; and Hecox has engaged in “gamesmanship” to avoid review of the lower court ruling. | | These various filings raise several intriguing problems of jurisdiction and procedure. We’ll try to sort through them and explain how we think things might turn out and why. This requires some discussion of mootness and then of Munsingware—and then a look at how they tie together. | | Start with mootness. Mootness, the Supreme Court has instructed, reflects the requirement, in Article III of the Constitution, that federal courts adjudicate only “cases” and “controversies” and not issue advisory opinions. The Court has explained that “[a] case is moot when the issues presented are no longer 'live’ or the parties [now] lack a cognizable interest in the outcome” even if they once had one. The Court has also insisted that “an actual controversy . . . exist not only at the time the complaint is filed, but through all stages of the litigation.” Thus, as the Court has explained, it cannot review a case that has become moot even late on the way to the Court’s final resolution because “[t]o sustain our jurisdiction . . . it is not enough that a dispute was very much alive when suit was filed, or when review was obtained in the Court of Appeals.” | | There are, of course, lots of reasons a case might become moot. Cases brought by students seeking only injunctive relief against policies in their educational institutions—for example, challenges to campus rules regulating student speech—are particularly prone to mootness because students (hopefully) graduate and (unless they plan to enroll in another program) upon graduation an injunction against the university would have no effect on them. | | Although mootness is grounded in Article III, the Court has sometimes been reluctant to find a case moot and has also recognized some exceptions. For example, under the “voluntary cessation” exception to mootness, the Court has held that “a defendant cannot automatically moot a case by simply ending its [ostensibly] unlawful conduct once sued” if the defendant is free and thus reasonably likely to resume the allegedly wrongful conduct against the challenger at a later date. | | The Court has also exempted cases (including challenges by pregnant women to abortion laws and, less often, challenges to election laws) that present issues deemed capable of repetition as between the parties, yet (since litigation takes time) likely to evade review by the Court because events in certain settings will invariably create technical mootness prior to the Court being able to fully consider and resolve the case. This nod to the reality that full litigation of an acknowledged Article III case cannot be instantaneous distinguishes mootness exceptions from, say, the unwillingness of the Court to confer standing simply on the ground that if the plaintiff in a case lacks standing then no one else would ever have it either. In any event, the capable-of-repetition-yet-evading review (CORYER) exception does not seem relevant to the Hecox matter, both because (1) (if she is to be believed and bound) Hecox will not have future skirmishes with Idaho; and (2) the issue of whether states can limit college athletes to sports teams defined by their biological birth sex is not likely to evade review by the Court in other cases. | | Mootness can implicate concerns about fairness. Consider a party who loses in a federal circuit court and seeks review in the Supreme Court but before the Court rules (whether by denying review or with a decision on the merits) the case becomes moot. Mootness could leave the petitioning party (and those like it) stuck with the adverse circuit court ruling, which would be binding precedent in the circuit even though that circuit ruling was effectively unappealable. United States v. Munsingwear responds to that problem. It says that when intervening mootness renders a pending case moot, the decision from the lower court should be vacated, or wiped out. As Munsingwearputs it: “The established practice of the Court in dealing with a civil case from a court in the federal system which has become moot while on its way here or pending our decision on the merits is to reverse or vacate the judgment below and remand with a direction to dismiss.” By “strip[ping] the decision below of its binding effect,” vacatur prevents an unreviewable decision “from spawning any legal consequences.” (In similar fashion, many jurisdictions deny full preclusive, or res judicata, effect to rulings that could not have been appealed.) | | Yet the Munsingwear rule is not quite as simple as it might sound. Munsingwear vacatur is an equitable doctrine. Not all cases become moot for the same reason and some cases present more compelling reasons for vacatur than do others. The Court has made clear that Munsingwear vacatur is not available if the party adversely affected by the decision of the lower court voluntarily caused the mootness (precluding Supreme Court review) and the other party opposes vacatur. Thus, in U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, the Court held vacatur unavailable when mootness resulted from the parties settling their claims and only one party sought vacatur. Justice Scalia explained: “A party who seeks review of the merits of an adverse ruling, but is frustrated by the vagaries of circumstance, ought not in fairness be forced to acquiesce in the judgment. . . . The same is true when mootness results from unilateral action of the party who prevailed below. . . . [But] [w]here mootness results from settlement, . . . the losing party has voluntarily forfeited his legal remedy [of] the ordinary processes of appeal or certiorari, thereby surrendering his [entitlement] to the equitable remedy of vacatur. The judgment is not unreviewable, but simply unreviewed by his own choice.” | | How do mootness and Munsingwear apply when, as in Little v. Hecox, the respondent (who as plaintiff) prevailed rather than lost in the lower court and then seeks to dismiss her claims entirely and with prejudice? | | Voluntary dismissal of a claim with prejudice is an adjudication on the merits for purposes of res judicata. Although the defendants express a concern that Hecox might in the future decide to participate in college sports, dismissal with prejudice would bar her from bringing a future lawsuit against any of the defendants she had sued to challenge application of the Fairness in Women’s Sports Act. It is possible that she could enroll at a different institution in a different state (perhaps even in the Ninth Circuit) with a law similar to Idaho’s and bring a new lawsuit naming different defendants. But that prospect does not weigh against mootness in Hecox’s Idaho case. And if, under Munsingwear, the Ninth Circuit decision were vacated after the district court case had been dismissed, defendants in other states wouldn’t be unfairly burdened by Hecox’s Idaho litigation. | | So, too, we don’t think there is much to the defendants’ point that the Ninth Circuit decision in Hecox’s case has been relied upon as precedent in other cases. That fact doesn’t support a determination of non-mootness any more than an absence of citations would support a finding that a case is in fact moot. Indeed, even if Hecox had not disclaimed any intent to participate in sports such that no mootness question were present, and the Supreme Court were to reverse the Ninth Circuit, the other cases that had already relied on the Ninth Circuit precedent in the meantime would still exist—they simply would have no future weight. But so too they would be deprived of future weight if the Ninth Circuit ruling on which they relied were to be vacated. | | We also don’t think Hecox’s agreement to stay proceedings in the district court matters much. For one thing, it isn’t clear to us that agreeing not to proceed in the district court bars a party from ending a case entirely—that is, a motion not to proceed might not be a proceeding. In addition, it isn’t evident that Hecox needs to succeed in persuading the district court to dismiss her complaint. Consider Deakins v. Monaghan. There, the Court ordered vacatur with respect to certain equitable claims when respondents represented to the Supreme Court that they would amend their complaint to withdraw those claims. Petitioners objected that despite the promise respondents made, they could still revive their claims in a future action. The Court thought otherwise by operation of Munsingwear. It explained: | Petitioners misconceive the effect respondents’ representations and our reliance thereon will have on the shape of the federal litigation. When a claim is rendered moot while awaiting review by this Court, the judgment below should be vacated with directions to the District Court to dismiss the relevant portion of the complaint. See United States v. Munsingwear, Inc. . . . This disposition strips the decision below of its binding effect. And respondents can be prevented from reviving their claims by the order of dismissal. Because this case was rendered moot in part by respondents’ willingness permanently to withdraw their equitable claims from their federal action, a dismissal with prejudice is indicated. This will prevent the regeneration of the controversy by a reassertion of a right to litigate the equitable claims in federal court. Relying upon the representations of respondents’ counsel at oral argument that all . . . respondents have no continuing interest in the federal adjudication of their claims for equitable relief, the equitable claims of all respondents should be dismissed with prejudice. Respondents therefore will be barred from reviving in federal court their equitable claims against petitioners arising out of the events [at issue in the case].
| | In a footnote in Deakins, the Court added: “The Court’s ability to prevent respondents from renewing their claims after they are dismissed as moot distinguishes this case from one in which a defendant attempts to avoid appellate review by voluntarily ceasing the challenged conduct without losing the ability to reinitiate the conduct once the mooted case is dismissed.” | | Deakins would seem to provide an easy path for the Court to accept Hecox’s representations to it that she is abandoning her claims, find mootness, and order vacatur of the Ninth Circuit ruling and dismissal with prejudice in the district court. It is most unlikely that any notion of Hecox having waived her right to dismiss (if such a right could ever be waived) while her case was at the Supreme Court would stand in the way. That assessment seems to best comport with the Court’s insistence that because “[p]laintiffs are masters of their complaints and remain so at the appellate stage of a litigation,” and with other cases in which the Supreme Court has ordered vacatur following a respondent’s voluntary dismissal. | | That leaves, then, the question of whether the Court should refuse to find mootness out of a concern that Hecox is, as defendants claim, engaging in problematic gamesmanship. The defendants assert that Hecox, who has benefited from the injunction during her time in college, is seeking to moot the case because, after Skremetti, she has now concluded that the Court is very likely to reverse the lower court decision. On the defendants’ theory, Hecox and her lawyers have decided it better to give up the favorable circuit court decision on the Idaho law than to have her lawsuit serve as the vehicle for the Supreme Court to issue an adverse ruling with nationwide effects. | | The Court has on occasion expressed concerns with mootness that might reflect an attempt to avoid review. Of particular relevance is City of Erie v. Pap’s A.M. In that case, the respondent, a corporation operating a nude dancing establishment, had prevailed in the Pennsylvania Supreme Court on its federal constitutional injunctive challenge to a city of Erie ordinance, and when the case reached the Supreme Court, the corporation argued mootness because the nude dancing establishment was no longer operating in the city. The Court rejected the claim of mootness and reversed the state Supreme Court to hold the ordinance valid. Writing for the Court on the mootness issue, Justice Sandra Day O’Connor thought the issue “close” but she pointed to the possibility that the respondent, still incorporated in Pennsylvania, might well start up a nude dancing establishment again in Erie. She also wrote that “[o]ur interest in preventing litigants from attempting to manipulate the Court’s jurisdiction to insulate a favorable decision from review counsels against a finding of mootness.” | | City of Erie is a case that might incline the Court to try to resolve the Hecox case on the merits. But City of Erie was very different from the Hecox case in an important respect; since that case came up via the state courts, Munsingwear (which involves the Supreme Court’s power to supervise lower federal courts) and vacatur pursuant to it were not available. As a result, finding the case moot would have left the Pennsylvania Supreme Court ruling intact, perhaps giving the respondent (and businesses like it) exactly what they wanted—invalidation of the Erie ordinance. | | In his opinion concurring in the judgment in City of Erie, Justice Antonin Scalia (joined by Justice Clarence Thomas) thought the consequence of mootness—that an erroneous state court decision on a federal constitutional question remained in place—was “not a consequence that authorizes us to entertain a suit the Constitution places beyond our power.” And there is something to the Scalia/Thomas position: if a case is moot, it is moot. Whether or not vacatur is available does not, analytically at least, seem to bear on whether the controversy remains ongoing. Only after mootness is found does the issue of vacatur come into play. In any event, the inability to dictate vacatur in City of Erie seems irrelevant to Hecox’s case, where there seems little question vacatur is available. | | In a more recent case, Acheson Hotel v. Laufer, the Court has returned to these issues and seemed disinclined to rest a mootness decision on gamesmanship. The case involved the question of whether a plaintiff had standing to bring a claim against Acheson Hotel for violating the Americans with Disabilities Act by failing to provide information on its website about accessibility, given that the plaintiff had no plans ever to visit the hotel. The plaintiff prevailed below and the Supreme Court granted the hotel’s petition for certiorari. Subsequently, one of the plaintiff’s lawyers was suspended from the practice of law and the plaintiff dismissed the case (and others she had pending against different hotels) with prejudice. She then filed a suggestion of mootness with the Supreme Court. The hotel objected that the plaintiff (now respondent) was manufacturing mootness to avoid the Supreme Court’s ruling on the standing issue and that it and other hotels would soon face similar claims by other ADA testers. In an opinion by Justice Amy Coney Barrett, joined by six other justices, the Court agreed the case was moot and, pursuant to Munsingwear, vacated the circuit court’s judgment and ordered dismissal. Regarding the possibility and relevance of gamesmanship, Justice Barrett wrote: | We are sensitive to Acheson’s concern about litigants manipulating the jurisdiction of this Court. We are not convinced, however, that Laufer abandoned her case in an effort to evade our review. She voluntarily dismissed her pending ADA cases after a lower court sanctioned her lawyer. She represented to this Court that she will not file any others. Laufer’s case against Acheson is moot, and we dismiss it on that ground. We emphasize, however, that we might exercise our discretion differently in a future case.
| | Justice Thomas concurred in the judgment, and in some ways seemed to back away from his opinion in City of Erie. He wrote that “the circumstances strongly suggest strategic behavior” on the part of the respondent, and that he “would not reward . . . [her] transparent tactic for evading our review.” Rejecting mootness, Thomas concluded the plaintiff lacked standing to bring the claim against Acheson. | | All of the Court’s discussion of gamesmanship may obscure two separate considerations in play. One is the attempt of a party to insulate a favorable lower court ruling from Supreme Court review. But that strategic ploy can be fully addressed by vacatur (at least when a case comes up through federal, rather than state, courts). A second concern, though, is that parties ought not to waste federal courts’ time and resources. This concern has sometimes arisen in other justiciability settings too. In Craig v. Boren, for example, the Court allowed third-party standing (which is generally disfavored) in part because so many judicial resources had already been consumed in litigating the merits of the case. | | But as tempting as it might be for the Court to retain jurisdiction in Hecox (or other cases) on gamesmanship grounds (and we understand why the Court dislikes gamesmanship), that would, we think, be a mistake. Even if it were possible (and we doubt it is) to craft with any precision a gamesmanship exemption to mootness, such an exemption has little justification if mootness is indeed meaningfully grounded in Article III. It wouldn’t seem to matter, for Article III purposes, that the reason there is no “case” or “controversy” is that a party engaged in litigation decisions based on predictions of how a court might rule. Either there is a live case or there is not, and if there is not ,the Court wouldn’t seem to have the power to set the law (for the entire country) simply to punish bad litigation behavior. Moreover, live controversies become moot (or are never even initiated) because of rational, if strategic, decisions by parties all the time, not just at the Supreme Court but in lower courts. Importantly, a gamesmanship exception to mootness would also be quite different from other exceptions (such as capable-of-repetition-yet-evading-review) that the Court has recognized: it is one thing for the Court to keep an expired case to review an issue it will never otherwise be able (because of its own ponderous timelines) to resolve in any case; it is another to keep an expired case to resolve an issue that can easily be resolved in other live cases, simply to send a message to litigants to avoid some vaguely defined subset of the kind of routine (if self-interested) litigation decisions lawyers and clients make every day. | | We think the sensible and correct course is for the Court to find Little v. Hecox moot and order vacatur. And we note that the Court still has this term B.P.J. v. West Virginia. In that case, a transgender middle-school student challenged under Title IX and the Equal Protection Clause her exclusion, by operation of state law, from sports teams at her school. After the district court granted summary judgment for the state, the Fourth Circuit reversed on the Title IX claim and vacated and remanded for additional evidentiary proceedings on the equal protection claim. Given the presence of a statutory claim and the possible need for further development of the record, the Court might or might not get to the equal protection issue in BJP. But even if not, the principled path remains to wait for another day and another case. |
|
Have friends who like law? Forward this email. 
Like Verdict for legal discussions on Facebook. 
Follow @verdictjustia for news and updates on Twitter. 
