Cite as: 532 U. S. 598 (2001)
Ginsburg, J., dissenting
sider whether costs would be in order for the plaintiff who obtains substantial relief, but no final judgment. Nor does "a single case" on which the concurring opinion today relies, ante, at 613 (emphasis in original).6 There are, however, enlightening analogies. In multiple instances, state high courts have regarded plaintiffs as prevailing, for costs taxation purposes, when defendants' voluntary conduct, mooting the suit, provided the relief that plaintiffs sought.7 The con-6 The Baltimore, 8 Wall. 377 (1869), featured in the concurring opinion, see ante, at 611, does not run the distance to which that opinion would take it. In The Baltimore, there was a judgment in one party's favor. See 8 Wall., at 384. The Court did not address the question whether costs are available absent such a judgment. The Baltimore's "incident to the judgment" language, which the concurrence emphasizes, ante, at 611 (citing 8 Wall., at 388, 390), likely related to the once-maintained rule that a court without jurisdiction may not award costs. See Mayor v. Cooper, 6 Wall. 247, 250-251 (1868). That ancient rule figured some years later in Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379 (1884); the Court noted the "universally recognized rule of the common law" that, absent jurisdiction, a "court can render no judgment for or against either party, [and therefore] cannot render a judgment even for costs." Id., at 387. Receding from that rule, the Court awarded costs, even upon dismissal for lack of jurisdiction, because "there is a judgment or final order in the cause dismissing it for want of jurisdiction." Ibid.; see U. S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U. S. 18, 21 (1994).
7 See, e. g., Board of Ed. of Madison Cty. v. Fowler, 192 Ga. 35, 36, 14 S. E. 2d 478, 479 (1941) (mandamus action dismissed as moot, but costs awarded to plaintiffs where "the purposes of the mandamus petition were accomplished by the subsequent acts of the defendants, thus obviating the necessity for further proceeding"); Baldwin v. Chesapeake & Potomac Tel. Co., 156 Md. 552, 557, 144 A. 703, 705 (1929) (costs awarded to plaintiff after trial court granted defendant's demurrer and plaintiff's appeal was dismissed "based on an act of [defendant] performed after . . . entry of the appeal"; dismissal rendered "it unnecessary to inquire into the merits of the suit"); Ficklen v. Danville, 146 Va. 426, 438, 132 S. E. 705, 706 (1926) (costs on appeal awarded to plaintiffs, even though trial court denied injunctive relief and high court dismissed appeal due to mootness, because plaintiffs achieved the "equivalent to . . . 'substantially prevailing' " in "gain[ing] all they sought by the appeal"); cf. Scatcherd v. Love, 166 F. 53, 55, 56 (CA6 1908) (although "there was no judgment against the defendant
631
Page: Index Previous 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 NextLast modified: October 4, 2007