The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.
To get the Volokh Conspiracy Daily e-mail, please sign up here.
Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Comments may only be edited within 5 minutes of posting. Report abuses.
Please
to post comments
Before commenting on this case, I have to know which political party is on which side.
/sarc
Aren’t the inferior courts the federal ones, other than the Supreme Court, which Congress created? Is a state’s highest court an inferior court also, relative to the federal Supreme Court?
If a state’s laws or constitution say that its highest court can always take back a case for rehearing, wouldn’t that allow it unless the federal constitution says it’s not allowed?
Agree that a state supreme court is not an inferior court. It has concurrent jurisdiction absent a Supreme Court order directing it to proceed in a particular way. If the parties settled the case even after certiorari was granted, the state courts could dismiss the case. Some litigants ask the state supreme court not to issue its mandate so as to keep the case alive in state court for that purpose.
Letting the state court meddle with a case already appealed from it by certioriari would just add to “the law’s delay” and make the process subject to gamesmanship. Let the U. S. Supreme Court keep the case until they’re done with it, then give it back (with instructions) to the state high court.
Concur on the possibility of gamesmanship, but the risk might be pretty low or zero for many states. As a practical matter, I’m not sure how many state S.Cts. have rules that let them rehear a case sua sponte, as I understand is the case with NC.
I welcome input from folks with more expertise, but I’m not about to survey 50 sets of state S.Ct. rules…
It seems pretty clear to me that SCOTUS needs to DIG this. Take a look at Chic. Great W. R.R. v. Basham, 249 U.S. 164, 167 (1919) and Hibbs v. Winn, 542 U.S. 88, 98 (2004). Basically, if the lower court (state or federal) decides to rehear something, it’s no longer final.
Logically, whenever a lower court could rehear the case, it’s not final.
That would certainly cut SCOTUS’s workload !
Well, in virtually all cases, there’s a deadline to petition for a rehearing in the state court. It’s final once that deadline passes or the court denies the rehearing. It just delays things by a few weeks. The problem arises when there are procedural weirdnesses or the state court grants an untimely request after SCOTUS takes the case. That’s where I think Winn comes in:
“A timely rehearing petition, a court’s appropriate decision to entertain an untimely rehearing petition, and a court’s direction, on its own initiative, that the parties address whether rehearing should be ordered share this key characteristic: All three raise the question whether the court will modify the judgment and alter the parties’ rights. . . . In other words, while [a] petition for rehearing is pending, or while the court is considering, on its own initiative, whether rehearing should be ordered, there is no `judgment’ to be reviewed.”
Noop. The state court is dealing with state law matters which are entirely different than the Federal questions of whether or not the state court can even rule on matters related to Congressional elections (answer: they can) and of whether the state constitutions even govern Congressional elections (answer: they don’t). The state court may decide that it wrongly decided the case under the state constitution, which is a separate question from whether the state court can base their ruling on the state constitution at all.
You should not discount the possibility that SCONC no longer cares what anybody thinks and isn’t about to let a conservative SCOTUS dictate how they rule [in?] the state of NC.
The NC Supreme Court flipped from Dem to GOP in the recent elections, so it will be reversing the previous ruling that SCOTUS is currently reviewing. This gives SCOTUS the opportunity to avoid making a controversial ruling about a controversial issue so Roberts will be eagerly biting this offer from the State judges off at the arm. Easiest prediction of the decade: 1. SCOTUS finds a way not to rule 2. Kagan hissy fits about stare decisis 3. SCONC reverses the previous SCONC ruling which started all the fun 4. ISL doctrine goes back in the box for another decade
I agree with 1-3; your analysis was spot on.
Not sure about #4, I am a) an agnostic on the questions with ISL, and b) it is impossible to put toothpaste back into the tube.
Fine fine, “unring the bell” then.
I am kind of skeptical the ISL doctrine would go back in the box for very long. For example, the (D) controlled NY legislature might be pretty keen to challenge the tossing of their gerrymandered maps in April 2022. It’s a sword that cuts both ways, and someone is going to be motivated to swing it.
Actually unringing the bell is harder than putting the tothpaste back in the tube.
I don’t think SCOTUS can order a state’s courts to not hear a case. It may be a waste of judicial resources, but the states are free to waste their resources if they so choose.
Do you also contend that if a case is removed to federal court, say on diversity grounds, that the state can proceed anyway?
Such an interesting time to be a constitutional scholar! A thoroughly politicized Court keeps creating all of these doctrinal puzzles we have to untangle.
What does the issue Prof. Baude raised have to do with “politicized” anything?
Not sure I feel like engaging your passive-aggressive sniping.
But anyway: the Supreme Court was aiming to toss the NC maps on some version of the ISL theory – hopefully just stating that the NC courts can’t impose their own maps, but in the worst-case scenario declaring that state courts can’t second-guess legislatures at all. But that’s clearly going to be a big hullabaloo, so with the flip in the NC Supreme Court and possible reconsideration of the maps at the state level, they’re looking for an out.
Same way they avoid thorny substantive and politically-fraught issues, from time to time, by DIGing, remanding on standing, etc.
But that’s just the (obvious) political angle. Will is focusing on how the Court manages to do that with a patina of rule-based reasoning, which raises the puzzle the OP poses. Same way the Court is forcing us to make sense of their “major questions” decisions, “most favored nations” reasoning in religious freedom cases, a wholly new standard in reviewing Second Amendment cases, and so on.
Will is too decent to call a spade a spade. But some of us understand what’s going on, and aren’t disingenuously pretending it isn’t.
I understand your argument, but, arguably, a “thoroughly politicized” Supreme Court wouldn’t be “looking for an out,” but rather for a way to make its political ruling. I guess it depends how “thorough” you think a “thoroughly politicized” Supreme Court is.
And how outcome-oriented the S.Ct. is. If they take the out, NC gets a GOP-biased redraw … while NY is stuck with the one imposed by the NY state supreme court that threw out a Dem-biased redraw by the NY legislature in April 2022.
Were it not for that NY state decision, it is probable that the Democrats would have retained control of the US House as well as the Senate. Regardless of how far down the “Buh-huh-but state X did bad thing Y in favor of party Z” rabbit hole, there’s money on the table, as it were.
Why could aggrieved NY Dems not then take their judicially interfered with maps to the federal courts ?
NY blew their opportunity for a SCOTUS remedy, since they failed to file for certiorari. But NY Dems could re-draw the districts in their favor if SCOTUS overrules SCONC in this case.
I dunno, adjusting standards on the fly in order to get the political outcome you want without catching unnecessary flak for it seem pretty “politicized” to me.
You don’t know how SCOTUS would rule if they had to decide the NC case. They certainly don’t always rule to get the political outcome they want, because the conservative majority frequently fractures to give the win to the lefty side in political cases. However we do know that Roberts plan to protect SCOTUS’s reputation as apolitical is to be intensely political – to worry like crazy about how any decision is going to be greeted in the lefty media. Consequently he is always on the look out for a way to dodge making a ruling. And he also flips to the lefty side, to give them a win, often on the basis of a different line of argument from the libs. It’s harder for him to do now that Ginsburg has been swapped out for Barrett, as he needs to find a second flipper, but he sometimes manages to get Kavanaugh or Barrett. Not always – he tried in Dobbs but failed. So there’s no defense to the charge that at times Roberts is political – but in the sense that he makes a political decision to side with the left for optics reasons.
If SCOTUS vacates SNONC in this case, that might result in more Republican house reps from North Carolina, but the “blast radius” would also include Pennsylvania and New York. Pennsylvania districts MAY end up being redrawn in favor of Republicans, but New York districts would definitely be re-drawn in favor of Democrats.
The problem is that thoroughly politicized observers are upset that the current SCOTUS is NOT being political.
One could agree or disagree with the North Carolina Supreme Court immediate rehearing a case just after having decided it and after the US Supreme Court granted certiorari.
But North Carolina common law is what the North Carolina Supreme Court says it is. And whether the North Carolina Supreme Court can revisit a case pending on writ of certiarari in the US Supreme Court is a question of North Carolina law, not federal law.
Professor Baude should either make an argument why federal law and not state law should apply, or make an argument based on specifically North Carollina law.
It seems to me that if the North Carolina Supreme Court’s action is accepted as valid, and it’s pretty clear to me that state law controls and federal courts have no choice in the matter, then it’s also clear that there is no longer a final judgment and the case is no longer ripe for US Supreme Court decision. They should dismiss the writ of certiorari.
Once a federal court accepts a state court decision on appeal, it’s now a federal courts issue, isn’t it? So wouldn’t federal rules of jurisdiction apply? And even if state law contradicted, wouldn’t the federal law supercede?
You have stumbled over the problem with the SCONC decision, namely that it decided a Federal electoral matter based on a state law/state constitution. Since the Elections Clause is located in the US Constitution, all laws made pursuant to it are Laws of the United States within the meaning of the Supremacy Clause, and thus are superior to any state constitution.
North Carolina Rule of Appellate Procedure 31:
In an ordinary case the 45 day limit for granting a petition for rehearing would have expired before the U.S. Supreme Court decided whether to take the case.
Was this reargument based on a petition, or was it sua sponte? Do deadlines for filing petitions apply to the court’s sua sponte actions?
I think I understand now.
The court issued two decisions in the same case in 2022, in February and December. The losers in February sought review by the Supreme Court. Meanwhile, the case was also remanded to the trial court to judge a new set of maps from the state legislature. There is your jurisdictional problem. The trial court decided the remanded case on February 23 before the U.S. Supreme granted certiorari on June 30. The remanded case was appealed again and a decision issued in December. Rehearing of that second decision was granted in February of this year.
The state court had found in the state constitution a right for political parties to win seats roughly in proportion to their membership. That European principle will likely be abolished by the new court in the spring. Elections have consqeuences.
There is no such “European” principle. There are certainly some states in Europe which use some form of “ proportional” representation, but it’s certainly not a principle, it’s just the laws they’ve enacted. And there are also some states which don’t have proportional representation.
Quoting from the December 2022 Harper v. Hall case (not the February 2022 decision of the same name pending before the Supreme Court):
I am glad somebody asked this. It was my first thought.
“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.”
As I understand it, when the Supreme Court decides certiorari they are generally not “tak[ing] responsibility for the whole case itself,” but only for the federal-law aspects of the case. State-law issues wouldn’t be subject to certiorari as a general rule.
I don’t think that means the state court can reconsider federal issues while those issues are in the U. S. Supreme Court on certiorari.
Technically they are reviewing the judgment, although the scope of the review is limited to federal issues. They aren’t taking a reference from the state supreme court and providing advice.
Technically correct is the best kind of correct, especially on a legal blog.
This whole situation is yet another good illustration of why it’s a terrible idea to have elected judges.
They might rule the wrong way?
Last year, the North Carolina Supreme Court held, in a 4-3 party-line vote, that the Republican legislature’s drawing of congressional districts to favor Republicans violated the state constitution. (As to the federal Constitution, the U.S. Supreme Court has previously held, in Rucho v. Common Cause (2019), a case out of North Carolina), that “partisan gerrymandering” presents a nonjusticiable political questions beyond the purview of federal courts to address.)
After last year’s elections, the partisan makeup of the North Carolina Supreme Court now stands at 5 Republicans and 2 Democrats. (Unsurprisingly, the petition for rehearing was granted on a 5-2 vote). Obviously, this year’s court would reach a different decision than last year’s court.
I suspect the U.S. Supreme Court will be very happy to avoid this issue altogether and now dismiss the certiorari petition it had previously granted. (Or do something functionally equivalent).
If a state is entitled to x congresscritters, why not have x at-large elections? Or one elections with the top x candidates winning?
Redistricting questions would be moot.
That used to be done in the past. Of course, that would be the perfect gerrymander in favor of the dominant party, as it would result in a party getting, say, 55% of the vote for Congress winning 100% of the seats in a state…
The Elections Clause of the Constitution provides:
So, nothing in the Constitution mandates districts, and, as kramartini notes, some states in the past did have at-large elections for the House (typically electing some at-large and some by district). California could have 52 at-large Congressional elections and virtually guarantee 52 Democrats were elected. Of course, a Republican state like Texas could do the same.
But, clearly, the Elections Clause gives Congress broad discretion in regulating elections, and it banned at-large districts in 1967, chiefly to increase minority-represented districts, particularly in the South, where the at-large districts were most common and used to disenfranchise black voters.
Representation by district certainly has some advantages, perhaps chiefly constituent service, where a voter can say, “He or she is MY representative”, to whom he can for specific issues. But there is much to be said for at-large districts too, such as their generally resulting in more moderate candidates who must appeal to a wider base. Perhaps allowing one or two per state would be a good idea.
This case has been a hot mess from the beginning. The Supreme Court of North Carolina (SCONC) made so many errors that it would be a waste of time to recount them all.
The biggest one, and one that SCOTUS can (and I hope will) rule on, is that SCONC made a final ruling on a matter related to Congressional elections based solely on a provision in the state Constitution. Under SCONC’s theory, SCOTUS has no right to hear the case, since SCOTUS has no right to opine on a state court ruling interpreting a state constitution. This, of course, violates the Supremacy Clause since Congressional elections are a Federal matter.
Neal Katyal argued very well before SCOTUS, but instead of defending the SCONC ruling, he used different theory, namely that the US Constitution’s grant of power regarding Congressional elections is limited by the state constitutions. Whatever the merits of Mr. Katyal’s case, that is not what SCONC’s ruling is based on. SCONC used a state law theory as opposed to Mr. Katyal’s Federal law theory. Thus, SCOTUS should vacate the SCONC opinion as contrary to the Supremacy Clause and leave the merits for another day. Note that SCOTUS asked for briefing on Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, which would enable this course of action.
As far as whether SCONC has jurisdiction over the matter being reviewed by SCOTUS, it is complicated. And the issue is even further complicated by the Law of the Case doctrine. SCONC already found both the state and Congressional districts invalid. That is settled and SCONC cannot reinstate the struck down districts on subsequent appeal. But what SCONC can do is issue a new ruling reversing the reasoning of the original opinion, and allow the NC legislature to “remedy” the situation by creating new district maps identical to the old ones.
The Supreme Court of North Carolina (SCONC) made so many errors that it would be a waste of time to recount them all.
I beg to differ. The 2022 elctions in NC were held under the court’s maps, not the Legislature’s. In what way could that be described as a “hot mess” ? I’d say “glittering success” would be the apt phrase.
Ask, and it shall be given you. The Dems asked and they were given what they wanted – 3 extra House seats. On the basis of ridiculous reasoning, sure, but it wasn’t intended as reasoning. Just delivering the result.
from wiki : The “law of the case” doctrine precludes reconsideration of a previously decided issue unless one of three “exceptional circumstances” exists: (1) when substantially different evidence is raised at a subsequent trial, (2) when a subsequent contrary view of the law is decided by the controlling authority, or (3) when a decision is clearly erroneous and would result in a manifest injustice
Why would (2) or (3) not apply ? Or at least why should the freshly scrubbed new SCONC not say so ?
Or the “new” SCONC could correct the reasoning in the opinion and then order that the trial court’s “remedy” be to draw new maps identical to the original ones. Why invoke an “exception” when you can get to the proper result without one?
Well I suppose using a rule that can only be used if the previous ruling was batshit crazy to the point of howling at the moon might allow them to underline the point that the previous ruling was batshit crazy to the point of howling at the moon.
Also simply nuking the old ruling would reestablish the legislature’s original maps as the ones with legal standing, rather than establishing court ordered maps identical to the old ones. The practical result is the same, but the legislature’s position is that its own maps are not to be interfered with.
Actually thinking about it some more, I wonder if there might not be a real difference between restoring the legslature’s original maps, and directing the lower court to draw new maps equivalent to the original maps.
And the difference is a matter of timing. I would assume that the original maps were drawn so as to comply with the equal number of people rule when they were drawn. But the new (equivalent) maps will be drawn as of now. In the interval, there will have been changes in the number of people in each district.
So perhaps the same maps redrawn now by the court would be vulnerable under the equal people rule.
The 2020 census is the standard used until the 2030 census, no matter how many times the districts are re-drawn.