For generations, progressives litigants saw the Supreme Court as their salvation. Any and all unfavorable lower court decisions would be promptly appealed to the Supreme Court for correction. Even as the Court began to lean more to the right, progressive litigants felt emboldened in particular areas–especially with regard to Justice Kennedy and gay rights. But after Justice Kennedy's retirements, progressives began to think long and hard before filing cert petitions. The thinking went that it was better to leave in place an unfavorable circuit precedent than to risk setting an unfavorable nationwide precedent. This orthodoxy was so entrenched that the University of Virginia SCOTUS clinic was criticized for successfully petitioning for certiorari in Jones v. Hendrix, a prisoner case. Ultimately, the Court resolved a circuit split against the prisoner, and in the process, wiped our local circuit precedents that favored prisoners.
I think the memo has gone out that when progressive cause litigation loses in the lower court, let it be. But what about when progressives are bottom side? That is, the lower court ruled for the progressive side, and the non-progressive/conservative side is filing the certiorari petition? Of course, the progressive side can vigorously argue, as they should, in opposition to certiorari. There is always a good reason to deny cert. But what if the Court grants cert anyway? In recent years, we have seen a new strategy of SCOTUS keep-away: after certiorari is granted, the respondent takes some action to get the case off the docket.
Perhaps the most egregious example of this strategy was New York State Rifle & Pistol Association v. New York City (2020). No, not New York State Rifle & Pistol Association v. Bruen (2022), the landmark case that declared unconstitutional New York State's may issue conceal carry regime. The 2020 case involved New York City's unusual law that governed carrying firearms from one's house to a firing range. After certiorari was granted, New York City repealed the law, New York State prevented the city from re-enacting the law, and Mayor de Blasio salted the earth around City Hall to make sure the statute could never grow again. OK, I made up the last part, but you get the gist. This was a brazen effort to moot the case out, and it worked. The City was all too happy to litigate the case in the Second Circuit, but was not willing to roll the dice, and set a nationwide precedent. In dissent, Justice Alito, Thomas, and Gorsuch wrote "By incorrectly dismissing this case as moot, the Court permits our docket to be manipulated in a way that should not be countenanced."
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