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Term Paper

Kennedy Anderson

American Constitution - Governmental Powers

Professor Kassow

December 6, 2022

University of North Dakota

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Introduction

Throughout court history, many cases have involved the doctrines of ripeness and

mootness. To better understand ripeness, the metaphor of an unripe banana can be used. When a

banana is not ready to be eaten yet, it is green and we say it is not yet ripe. In the political world,

ripeness is used when deciding if a case is ready to be brought to the U.S. Supreme Court or not.

If the case is “too green” and unripe like a banana, the Court will not review it because the case

involves an issue or situation that has not occurred yet, or it is hypothetical (Epstein & Walker,

2020). The opposite of ripeness is called mootness. A case is referred to as “moot” if it contains

issues and arguments that are no longer relevant or are overripe. When a banana is overripe, it

has brown spots and it does not taste good. Life is too short to eat things that don’t taste good.

The same applies to cases. The Supreme Court is presented with way too many cases to review

and judge a case that is no longer relevant.

These doctrines of ripeness and mootness help the Supreme Court organize and review

the cases that are most important, are ready to review, and remain relevant. They exist because

the Constitution requires them to prioritize cases this way. Under “Article III, the federal courts’

judicial power is restricted to “cases” or “controversies.” Taken together, these words mean that

litigation must be justiciable - appropriate or suitable for a federal tribunal to hear or to solve”

(Epstein & Walker, 2020). Ripeness and mootness help fulfill that requirement by weeding out

cases that involve issues or controversies that are no longer suitable for the Supreme Court to

review. As time passes, these doctrines have continued to change and been interpreted differently

by the several different courts and justices. There are many examples of cases where justices

have found it should not be reviewed because of its ripeness or mootness, and I will discuss three

of those in this paper.

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These three cases are DeFunis v. Odegaard (1974), Roe v. Wade (1973), and United

Public Workers v. Mitchell (1947). Cases are often complicated and have many different parts.

Some cases take years to go through the different levels of courts, and by the time it reaches the

Supreme Court some laws may have passed or circumstances within the case may have changed.

Some judges and justices who review the case also hold different opinions regarding certain

issues, including its ripeness or mootness. Certain parts of the case may be considered moot or

unripe while other parts may not be. Along with that, some justices believe the rules of mootness

and ripeness are not clear and distinct, making it difficult to fully consider it unripe or moot.

Examples of that indistinction is found in the first case this paper will review. In the case

of DeFunis v. Odegaard (1974), Justice William J. Brennan Jr. makes a dissent that “suggests

the rules governing mootness are a bit fuzzier than the DeFunis majority opinion characterized

them” (Epstein & Walker, 2020). This was because this case moved up slowly through the courts

and the circumstances of the case were changing while it was moving through. It is important to

review what happened in this case to better understand why Justice Brennan Jr. noted what he

did in his dissent.

DeFunis v. Odegaard (1974) was a case involving a white male and the University of

Washington law school. Marco DeFunis Jr. brought an individual lawsuit against the law school,

arguing that it “engaged in reverse discrimination because it had denied him a place but accepted

statistically less qualified minority students” (Epstein & Walker, 2020). As mentioned earlier,

this case did not reach the Supreme Court until years after DeFunis initially brought upon the

lawsuit. The first court that reviewed it, the trial court, decided DeFunis had “merit in his claim,

and ordered that the university admit him” (Epstein & Walker, 2020). Therefore, DeFunis started

attending courses at the law school after this decision was made. He continued attending classes
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for two years, but when the case reached the Washington Supreme Court, the trial court’s

decision was reversed. This led DeFunis to appeal to the U.S. Supreme Court and they “held that

the school’s admission policy was not unconstitutional”, but at this time he had only one

semester left of law school.1 A majority of the justices found the case to be moot for the reason

that no matter what the court decides DeFunis would not be affected because he was already

registered for his last quarter and “concluded that the Court cannot, consistently with the

limitations of Art. III of the Constitution, consider the substantive constitutional issues tendered

by the parties” (Epstein & Walker, 2020).

When Justice Brennan dissents this decision and says it is not moot, three other justices

agree with him. In his dissent, Brennan considers the possibility that “DeFunis could conceivably

not complete his studies that quarter” (Epstein & Walker, 2020). He gives examples of why he

could have not finished his last semester, saying “any number of unexpected events -- illness,

economic necessity, even academic failure -- might prevent his graduation at the end of the

term”.2 If these events occurred, he may have to be readmitted into the school if he wanted to

finish, essentially facing the issue all over again. This loophole is what suggests that in certain

circumstances, the guidelines of mootness can get blurry. Despite the dissent, the case ended in a

“5-4 per curiam opinion, the Court held that because the University of Washington Law School

had agreed to allow DeFunis to enroll and to earn a diploma, the case in question was moot.”3 It

was not suitable for the Supreme Court to review because the issue was no longer a concern as

DeFunis was admitted and will never be in this situation again.

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DeFunis v. Odegaard 416 U.S. 312 (1974)
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DeFunis v. Odegaard 416 U.S. 312 (1974)
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DeFunis v. Odegaard 416 U.S. 312 (1974)
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A similar case, Roe v. Wade (1973), was not declared moot by the Supreme Court because

of a few key differences between the two cases. One of those key differences includes that the

defendant, Norma McCorvey, referred to as Roe, did not represent herself individually like

DeFunis did. While “DeFunis brought the litigation in his own behalf, Roe was a class action—a

lawsuit brought by one or more persons who represent themselves and all others similarly

situated” (Epstein & Walker, 2020). DeFunis was not one of many facing the issue he brought to

the courts, whereas Roe and her situation was common and other women may end up in the exact

place she was in because it dealt with pregnancy and abortion. Therefore, the justices found it

appropriate to be reviewed because the decision they would make would have an impact on

many other women similarly situated.

To understand the second key difference, it is important to review the opinion of the

Court in Roe v. Wade (1973). The opinion was not given until several years after Roe filed suit,

similar to the slow proceedings in DeFunis v. Odegaard (1974). Roe was a pregnant woman

seeking abortion and filed suit in 1970 because she believed the Texas law that “banned abortion,

however and whenever performed, unless done to save or preserve the life of the mother” was

unconstitutional.4 Roe ends up losing in the District Court and appealing to the U.S. Supreme

Court, but it did not reach the Court until 1973. Obviously by this time, Roe “had long since

given birth and put her baby up for adoption” (Epstein & Walker, 2020). Some may say this case

could then be considered moot because the decision the Court makes will not affect her since she

already had the baby she wanted to abort, similar to DeFunis already being admitted into law

school and in his final semester. The key difference is that “Roe could become pregnant again;

that is, pregnancy is a situation capable of repetition, yet evading review” (Epstein & Walker,

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Roe v. Wade 410 U.S. 113 (1973)
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2020). That explains why the case would not be considered moot and would be appropriate for

the Supreme Court to review.

Comparing these cases indicates that the guidelines of mootness are not clear and concise

especially when it comes to complicated cases. What is clear is that “the exceptions that the

Court has carved out can make mootness a rather fluid concept, open to interpretation by

different justices and Courts” (Epstein & Walker, 2020). Many different factors, like time

passing, play a role in understanding the circumstances of a case. Many things can change in a

few years, which is the amount of time it took for both of these cases to reach the Supreme

Court. Opposing interpretations occur because justices may view the guidelines of mootness

differently. They may also view and apply the guidelines of mootness differently depending on

how they view the circumstances of a case.

Everything changes as time goes on, and mootness will continue to change and be a fluid

concept. There are currently multiple exceptions the Court has established regarding mootness,

one of those being the exception of “yet evading review” used in Roe v. Wade (1973) which was

mentioned previously (Epstein & Walker, 2020). More exceptions may be added as courts are

presented with more complicated cases. This is similar to why the Constitution has been

amended so many times. An original document, or doctrine in the case of mootness, will need to

change with time because society is constantly changing. Given that the composition of the

Supreme Court also changes with time, interpretations of mootness by justices will continue to

change. They may view the circumstances from a different perspective and prioritize things

differently.

Ripeness is the opposite of mootness. Cases that are brought to courts too early are unripe

and not suitable for the courts to review. The banana analogy was used to describe ripeness
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because when a banana is green, the color indicates that it is too early to eat the banana. A case

that is often referred to when talking about ripeness is United Public Workers v. Mitchell (1947).

It involved a group of federal employees that “challenged the Hatch Act of 1940, which prohibits

some types of federal employees from participating in political campaigns” (Epstein & Walker,

2020). The group of federal employees believed the Hatch Act of 1940 was unconstitutional, and

filed a suit against the president of the United States Civil Service Commission.5 At the time it

was brought to the Supreme Court to be reviewed, only one of the federal workers had

participated in a political campaign, while the others only talked about participating in political

campaigns. They simply threatened that they might violate the act in the future, making this case

not ripe. In order for the Courts to review it, they would have had to already have violated the

Hatch Act of 1940. Therefore, the justices ruled that “only the one employee had a ripe claim

because “the power of courts, and ultimately of this Court to pass upon the constitutionality of

acts of Congress arises only when the interests of the litigants require the use of this judicial

authority for their protection against actual interference” (Epstein & Walker, 2020). There is a

possibility that the federal workers who threatened participation in political campaigns may

decide not to participate. Words and actions do not always align, so that is why the ripeness

doctrine exists. It would be a waste of time for the Courts to review a case that has only

hypotheticals and no concrete actions.

Cases may also be declared as unripe if they arrive at the Supreme Court’s doors before

they bring it to the lower courts first. Within the ripeness doctrine, it is required “that a party

exhaust all available administrative and lower court remedies before seeking review by the

Supreme Court” (Epstein & Walker, 2020). However, like the cases mentioned in this paper,

defendants often appeal to the Supreme Court as soon as the lose in the lower courts.
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United Public Workers v. Mitchell 330 U.S. 75 (1947)
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The doctrine of ripeness is a less fluid concept than mootness, as seen by analyzing the

cases in this paper. There are multiple exceptions to the guidelines of mootness, while ripeness

does not have any exceptions in place that have been used by justices. It has not changed over

time as much as mootness has, but has changed somewhat as everything does with time. Like

mootness, some justices may interpret ripeness differently under the circumstances that the case

presents.

The doctrines of mootness and ripeness were written into the Constitution in order to

weed out cases that involve issues or controversies that are no longer suitable for the Courts to

review. Cases that are moot, like DeFunis v. Odegaard (1974), are not reviewed by the courts on

the basis of them being presented to the courts too late and are no longer relevant. It would not

be beneficial for the courts to make a decision on moot cases because the issues they involve are

already resolved or do not exist. As seen in DeFunis v. Odegaard (1974) and Roe v. Wade (1973),

the guidelines of mootness often have exceptions when it comes to making decisions in

complicated cases and continues to change. The doctrine of ripeness helps ensure cases are not

brought to the courts too early. The case of United Public Workers v. Mitchell (1947) was

declared unripe because it involved hypothetical threats and no concrete actions. Justices on the

Supreme Court have interpreted the doctrines of mootness and ripeness differently, and that plays

a role in how these doctrines have changed and will continue to change over time.
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References

Epstein, L., & Walker, T. G. (2020). Constitutional law for a Changing America: Institutional

Powers and Constraints. CQ Press, an imprint of SAGE Publications, Inc.