The Volokh Conspiracy

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Law & Government

The Other Jurisdictional Question in Moore v. Harper

Did the state court have jurisdiction to grant rehearing?


Last fall the Supreme Court heard oral arguments in Moore v. Harper, the North Carolina case about the "Independent State Legislature Doctrine," which I've written about here. On February 3, however, the North Carolina Supreme Court took the unusual step of granting a petition for rehearing that may cause the state court to reconsider the merits determination that the U.S. Supreme Court is currently reviewing. And yesterday (March 2) the U.S. Supreme Court asked for supplemental briefing about whether that rehearing order renders the decision below non-final, depriving the U.S. Supreme Court of jurisdiction.

Derek Muller has lots more discussion and helpful analysis.

I don't have a strong view about the finality question the Court asked about, but I have been puzzled by a prior, related jurisdictional question. Did the North Carolina state courts have jurisdiction to grant rehearing on the merits?

It is a general maxim of federal jurisdiction that a lower court loses jurisdiction of a case while an appeal is pending. So far as I can tell, this rule isn't entirely mandated by a federal statute, it's just understood to be a consequence of the way appeals work. Similarly, at common law "a writ of certiorari takes the record out of the custody of the inferior tribunal, leaving nothing there to be prosecuted or enforced by execution, and operates as a stay of execution." 14 AM.JUR.2D Certiorari 74 (2d ed.2006).

If that principle applied in Moore v. Harper, then the issue would not be whether the Supreme Court has lost jurisdiction over the case, but rather that the state court might lack jurisdiction to take such actions. Is there some reason that principle would not apply in Moore v. Harper?

One possibility is that the certiorari/pending-appeal principle doesn't apply to state courts for some reason. But I am not sure what that reason would be. The principle doesn't seem to be based on the "supervisory power" of the federal courts or anything like that, but rather on the nature of certiorari or appellate review.

Another possibility is that the principle has changed, at least as applied to certiorari. As Ben Johnson has recounted (including last year on this blog), the Supreme Court now uses certiorari to consider only particular questions in a case, not to take responsibility for the whole case itself. This is not how certiorari worked at common law, and so maybe with that change, the certiorari-jurisdiction principle has changed too. I've never heard anybody say this, but it's possible.

A third possibility, and I suppose it is the most likely, is that this has something to do with what Muller calls "the 'two track' approach in this case":

This case went on two separate tracks after the original North Carolina Supreme Court decision finding a partisan gerrymandering, the "Elections Clause" track and the "remedy" track.

The "Elections Clause" track was this petition for cert to the Supreme Court. The "remedy" track sent it back to a three-judge panel with instructions for the legislature to offer a new map, for the trial court to review that map for whether it was a gerrymander, and to implement its own interim map if the legislature failed to draw an appropriate map.

The petitioners here argued that the "Elections Clause" track could be separated from the "remedy" track because whatever happened with the remedy, the Elections Clause argument would remain–the legislature was not permitted to draw the map it wanted, and any remedy, whatever it was, was not going to allow the legislature to draw the map it wanted. . . .

So the Court took the case on that basis.

The two track approach already suggests some exception to the certiorari-jurisdiction principle is afoot. Presumably the Court's theory was that the "Elections Clause" part of the case was final, and could be reviewed, even if the "remedy" part of the case was not—which is also related to the point above about the Court reviewing specific questions rather than the whole case.

But, if that is true, wouldn't it also imply that the North Carolina Supreme Court's continuing jurisdiction over the "remedy" part of the case did not give it continuing jurisdiction over the "Elections Clause" part of the case, which was now up on certiorari? That is, if the two tracks were separate enough for one part of the case to go up on cert., wouldn't they also have to be kept separate enough that the state court had lost jurisdiction over that part?

The question marks above are not rhetorical. I've been puzzling over these questions for almost a month, and still am not confident I understand what is going on here. But with the news that the Supreme Court is going to dig in to the jurisdictional issues here, I figured I would take my puzzlement public in the hope that somebody has this figured out.