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Has Moore v. Harper Become Moot?
The Supreme Court wants further briefing on whether it retains jurisdiction
Last week, the North Carolina Supreme Court overturned its prior decision redrawing the state's congressional districts, thereby reversing the decision under review by the U.S. Supreme Court in Moore v. Harper. As Derek Muller noted over at the Election Law Blog, this could mean that Moore v. Harper is moot.
Yesterday, the Court asked the parties for further briefing in light of these developments. The order reads:
The parties and the Solicitor General are invited to file supplemental letter briefs addressing the following question: What is the effect on this Court's jurisdiction of the April 28, 2023 order of the North Carolina Supreme Court? The briefs, not to exceed 10 pages, are to be filed simultaneously with the Clerk and served upon opposing counsel on or before 2 p.m., Thursday, May 11, 2023.
Muller also notes another jurisdicitonal wrinkle in this case (also raised by Will Baude): How do North Carolina courts retain jurisdiction over a case that is already subject to Supreme Court review?
Either way, the latest developments in North Carolina would give the justices an excuse to remove another case from the docket. Whatever the legal merits of such a move, it would make time for the justices to catch up on releasing opinions from argued cases.
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Not only do I not think that Moore v. Harper was moot, I think the NC Supreme Court ruled in a case where it has no jurisdiction.
When a case is taken up on appeal, merits jurisdiction is wrested from the trial court. E.g., if a trial court grants summary judgment, enters final judgment, and the summary judgment is appealed, the trial court has no power to listen to the oral argument, see it isn’t going in the way the trial court ruled, and reverse the summary judgment to moot the case and prevent an appellate reversal. The lower court has no jurisdiction.
Well, it shouldn’t work any differently here. Once cert was granted, SCOTUS pulled this case away from the North Carolina Supreme Court, and they had no power under the Supremacy Clause to act on the merits of it until SCOTUS issued its mandate.
Why do I think this is important? Because I think what the NC court was doing was partisan and ultra-sleazy. We all know some Republicans want to keep that independent state legislature argument around and in their pocket so they can use it if they encounter another Bush v. Gore situation or some other partisan election case where we know that courts will vote on party line. That’s WHY it was so important to moot this case rather than to wait for SCOTUS. SCOTUS was going to decide this OUTSIDE an election context and they didn’t want that.
Was what happened in North Carolina really any sleazier than what is likely to happen in Wisconsin, where a change in Justices as a result of a state election is also very likely to abruptly reverse various precedents of the previous court that were the subject of partisan debate?
Procedurally incorrect, possibly. But sleazy?
I think it was incorrect to reverse the underlying decision. But elected justices make for a semi-political court. And Supreme Court Justices are elected state-wide, both in Wisconsin and North Carolina. Neither outcome can be explained by a gerrymander. The voters in both states knew what they were getting. They voted with eyes open. It’s a different concept from the federal constitution’s concept of the judiciary. But it’s a republican form of government. In both states.
YMMV, but I think directly trying to interfere with SCOTUS jurisdiction makes it worse.
I take your point, however, that a lot of these state court systems feature judges who can’t wait to rush in and overturn all the controversial rulings of their predecessors. Stare decisis be damned.
I don’t think they are directly interfering with Supreme Court jurisdiction, because the Supreme Court only had jurisdiction on the US constitutional Independent State Legislature question.
The NC Supreme Court ruled on the question of whether NC Constitutions Separation of powers allowed the NC courts to overrule the legislature.
The NC Supreme court did not rule on the question that was under SCOTUS jurisdiction, and SCOTUS has no jurisdiction to rule on the question that was before the NC Supreme Court, the best it could do was certify the question that was decided back to the NC Court.
I don’t think lower courts get to slice the salami like that. I think they have an obligation under the Supremacy Clause to do NOTHING that interferes with SCOTUS jurisdiction.
You got a cite for that?
It’s not apparent in the text:
LII U.S. Constitution Annotated Article VI. Prior Debts, National Supremacy, and Oaths of Office Clause II Supremacy of Federal Law Supremacy Clause Supremacy Clause: Current Doctrine
Supremacy Clause: Current Doctrine
U.S. Constitution Annotated
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
I’d agree with you if the ruling was based on the US Constitution or US laws that the Supreme Court was considering on appeal from NC, but it can’t mean the NC Supreme Court can’t rule on its own constitution because in that it is Supreme, and the Supremacy clause doesn’t contradict that.
Seems to me NC Supreme Court reinterpretation of it’s constitution mooting this case is analogous to NY city amending it’s laws on transport of guns to gun ranges while NYRPC1 was before SCOTUS.
Just for the record, I don’t think the primary motive of the NC Supreme Court was to moot the SCOTUS case. I think it was to overrule the previous decision that found the current election maps violate the NC constitution. Republicans like these maps very much, since it allows them to keep a veto-proof supermajority in the state legislature, even though only 2.1 million of the 7 million registered voters are Republican.
Well since the GOP won both Supreme Court seats, and all 4 court of appeals seats that were up for statewide election by at least 4 points you can’t claim the result was gerrymandered. There was one Democratic incumbent for SC, and one open seat, the GOP won both by 5 points.
So you can hardly claim it wasn’t the will of the people. I’m not sure how much redistricting had to do with it, in a breathtaking display of arrogance the previous Supreme Court struck down a constitutional provision requiring voter ID that was enacted by the voters, in the process calling the 67% of voters that approved it racists.
I think the judicial elections were a clear message from the voters to the courts to stay in their own lane.
My understanding is that the NC Supreme Court still had jurisdiction over Harper 2, which is a remedies case that split off from Harper 1 (the case currently before SCOTUS). But since Harper 2 overruled Harper 1, the SCOTUS case is now moot as it would wouldn’t make any difference because, as a matter of state law, only the legislature has say in redistricting. In other words, any opinion would be advisory.
Put differently, it’s not the case that the NC Supreme Court lost jurisdiction once SCOTUS granted cert. because it’s now two separate cases. It’s just that the second case has now rendered any federal question irrelevant because—even assuming state courts have a check on redistricting as a general matter—as a matter of NC state law, they don’t.
That’s wrong though. E.g., think about a district court. Trademark infringement suit, with an application for attorney’s fees after the injunction is issued (and appealed).
Now, there’s no doubt the trial court can continue to decide the attorney’s fees issue. But it can’t “overrule” its prior ruling granting an injunction, because that ruling has been lifted out of its jurisdiction.
Exactly the same here. This was an enormous abuse of jurisdiction by the NC Supreme Court. If they really think the prior decision was wrong, they could wait for remand and deal with it then.
Harper 1 wasn’t before the NC Supreme Court on rehearing; Harper 2 was. If overruling Harper 1 resolves the question in Harper 2, then there’s no reason why the state supreme court couldn’t overrule it. The Court decided that as a matter of state law, Harper 1 was incorrect. Because Harper 1 is no longer good law, and the outcome would be the same regardless of how SCOTUS rules, then Harper 1 is moot.
I admit it’s weird that the case was split in this manner. That could be a function of NC law. I don’t know. But if it’s still a unitary case, it seems SCOTUS never had jurisdiction to begin with because there was no final judgment. If it’s not a unitary case, then there’s no reason the NC Supreme Court couldn’t overrule its own prior decision.
Harper 1 wasn’t before the NC Supreme Court on rehearing; Harper 2 was. If overruling Harper 1 resolves the question in Harper 2, then there’s no reason why the state supreme court couldn’t overrule it.
Yes there is. The Supremacy Clause and the fact that once Harper 1 is before SCOTUS, they have no right or power to do anything that interferes with a Court whose law is supreme over theirs.
Hypo: State Supreme Court (SSC) issues ruling in “Case 1” on confrontation right. Says state and federal constitutions should be read as protecting right to the same degree, and no protection here. Case goes to SCOTUS on federal question.
While SCOTUS case is pending, SSC rules in “Case 2” (which has identical facts to Case 1) that Case 1 was wrongly decided because state constitution protects confrontation right more than federal constitution. Case 1 overruled on state-law grounds.
The SCOTUS case (Case 1) is now moot because no matter what SCOTUS rules it won’t make any difference because under state law the defendant will get relief. That’s in no way a violation of the Supremacy Clause. The SSC can overturn its own decisions no matter the impact doing so might have on a pending SCOTUS case.
By that logic, if there’s a case pending before SCOTUS about the constitutionality of a state law (with injunctive relief the only remedy being sought), the Supremacy Clause says that the legislature can’t repeal that law because it would interfere with SCOTUS’s ability to decide the case. That can’t be right.
The trial court decision in Harper 2 came four months before the Supreme Court decided to take Harper 1. Unless North Carolina’s deadlines are very long the notice of appeal in Harper 2 had been filed. This is not a case where the state courts tried to evade the U.S. Supreme Court by procedural moves. A rule depriving the appeals court of jurisdiction because a related case is on review would leave the North Carolina courts unable to correct legal errors in the trial court. If either party thought the continued state court proceedings were interfering, the party could have asked for a stay.
There is a standard procedure when lower courts do not hold a case to wait for a U.S. Supreme Court decision on a live question of law. It is applied after many “watershed” decisions. A bunch of cert petitions are summarily granted and the lower courts are directed to apply the new standard. If the U.S. Supreme Court had recognized the Independent State Legislature doctrine and the state Supreme Court had not flipped, Harper 2 would have received that treatment.
What a legal blog this has become. The SCOTUS is on the verge of meltdown, enmeshed in the worst corruption scandal in its history. You can light the fuse on 10 pounds of dynamite, toss it into that powder magazine, and all you get back is a ride through cricket valley—that and a sudden profusion of dead cases with flies on them, dug up for autopsy.
As irregular as Sotomayors failure to recuse on the cert positions was she didn’t rule on any actual cases, just cert positions, and we don’t know if her vote had any effect on the rejection, which is highly unlikely.
And may well have just been an oversight.
After the U.S. Supreme Court granted certiorari, the North Carilina Supreme Court, over a dissent, granted a rehearing, and upon rehearing, again over a dissent, reversed its prior decision.
Notably, none of the parties on either side seemed to see a problem with this. Nor did any of the justices. Why didn’t a dissenter, either to the granting of a rehearing or in the reversal on the merits, say, “Hey! The Supreme Court granted cert! We don’t have any jurisdiction in this case!” Did the issue of jurisdiction simply not occur to anyone involved in the case?
The answer – the only possible answer – is that the U,S, Supreme Court only took jurisdiction over part of the case, with the NC Supreme Court retaining jurisdiction over the rest of the case. We can imagine a case in which the defendant is convicted on two counts. The state supreme court reverses the conviction on Count 1 and affirms the conviction on Count 2. Both the state and the defendant file petitions for certiorari with the Supreme Court, which grants the state’s petition but denies the defendant’s. Is the state supreme court now stripped of its power to review Count 2? Would that not effectively transform a denial of cert into a final judgment? I think in such a case that the state supreme court could grant a rehearing on Count 2 and reverse itself, and I think the instant case is governed by like principles and the occasional complex nature of dual sovereignty.
The answer – the only possible answer – is that the U,S, Supreme Court only took jurisdiction over part of the case, with the NC Supreme Court retaining jurisdiction over the rest of the case.
None of that matters, because the issue is the NC Supreme Court INTERFERING with the Supreme Court’s work. That’s the violation here, and it is a serious one.
A violation so serious, no party or judge involved in the case seems to have noticed it.
This isn’t a Supremacy Clause violation. Federal law is supreme over state law. This doesn’t imply that state courts must time their rulings such that federal courts keep jurisdiction of cases. The federal courts can either rule despite the mootness, or decline to rule because of the mootness. If the federal courts decide that there’s no longer a case or controversy and they thus lack the constitutional authority to rule… why should NC care? Why should NC delay their ruling just so SCOTUS can make a ruling which *won’t even apply* to the case in question because it will be mooted immediately afterwards?
Imagine an innocent death row inmate appealing to SCOTUS. Under your interpretation, the governor wouldn’t be able to pardon him until the case was ruled on.
“INTERFERING”!!!!
How dare they? How many times has anybody ever taken deliberate action before to moot a case or change the standing of a plaintiff when a matter is before the court?
Seems pretty commonplace to me.
Most of the time I think it’s because whoever takes the action doesn’t want the court to make a controlling ruling, but that’s clearly not the case here. If SCNC waited patiently to let SCOTUS rule aye or nay on the Independent State Legislature question, and then issued their own ruling it wouldn’t change things a whit in NC: The Legislature’s map is the effective map.
You’re right, as are others who have made the same point, but Dilan Esper is convinced that once certiorari denies the previous court the ability to change its earlier ruling. Nothing anyone has or will say will change that, so there’s no point in responding to him on this matter.
I think Dilan has convinced himself that the ISL doctrine would :
(a) go down in flames if SCOTUS heard it at a time when it doesn’t matter, but
(b) be upheld by a wicked partisan SCOTUS when it really did matter
It’s a view, I suppose, but it would involve Roberts and Kavanaugh running towards the sound of gunfire rather than away from it. Which is not where I’d be putting my money.
Well for what it’s worth the DOJ advocated that the Supreme Court punt the case in March when the NCSC decided to rehear the case.
They were definitely running away from the gunfire.