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Here’s why yet another Supreme Court case might become moot

Another one of the Supreme Court’s big disputes this term — this one involving Title 42 and immigration — could disappear before it’s decided. Here’s how.


Earlier this week on the blog, I noted that the fringe election appeal over the “independent state legislature” theory could be made moot by the actions of power-hungry Republicans on North Carolina’s Supreme Court.

Now, a new brief in another big case tells the justices that the Title 42 immigration dispute will become moot as well. On Tuesday, the Biden administration said that, with the Covid public health emergency ending May 11, the appeal seeking to continue the Trump-era policy that expelled migrants at the southern border because of Covid should also end.

Now, a new brief in another big case tells the justices that the Title 42 immigration dispute will become moot as well.

The oral argument set for March 1 in Arizona v. Mayorkas is technically about whether state attorneys general can intervene in the dispute in favor of the border policy, rather than the legality of the policy itself. But in taking the case, the Supreme Court also blocked a lower-court ruling that would have ended the policy. Notably, that stay caused dissent from not only the three Democratic appointees but also Trump appointee Neil Gorsuch, who wrote that the justices function as “a court of law, not policymakers of last resort.”

I’d argue that they do function as policymakers of last resort. But however one describes their role, we might get more insight into how the justices choose to wield their power when this case is argued in a few weeks.

And on the subject of the court’s potentially shrinking docket, consider that the justices are already deciding historically few cases these days. If you think about it, that’s not necessarily a bad thing, given all the damage that their decisions can do. So taking another one off the board might not hurt.