The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
There is much to say about Moore v. Harper. I'll start with the threshold issue: was there still a live controversy that the Court could decide? The majority opinion by Chief Justice Roberts answered the question yes; the dissent by Justice Thomas answered the question no. I won't even attempt to describe the tortured legal posture of this case. The Chief Justice somehow made the complicated litigation history straightforward. I think he cut a few corners here and there in the service of simplicity, but he illustrated once again why he is still, pound for pound, the best writer on the Court.
Here, I want to focus on one particular aspect of the mootness inquiry. The Court held that it could vacate the "judgment" from Harper I. Ultimately, the Court did not vacate that judgment, but it could have. Therefore, because the possibility of vacatur existed, the controversy was not moot. But what would have been the effect of vacating the judgment from Harper I? Chief Justice Roberts writes that if the Court vacated the judgment from Harper I, "the 2021 plans enacted by the legislative defendants would again take effect." Roberts further quoted from counsel for the legislative defendants that the North Carolina Supreme Court "overruling Harper I [would] not negate the force of its order striking down the 2021 plans." In these two sentences, Chief Justice Roberts succumbed to the writ of erasure fallacy.
A judgment does not operate against a statute; a judgment operates against parties. Justice Thomas spelled out the "deeper" problems with the Court's analysis.
But the error that actually drives the majority's conclusion is much deeper. The majority evidently thinks that when Harper I held the 2021 Act unconstitutional, it entered a "judgment" affecting the 2021 Act as a statute, independent of its application to the legal rights of the litigants in this case. And the majority thinks that to reverse Harper I 's "judgment" would "negate the force of its order striking down" the Act, thus "alter[ing] the presently operative statutes of North Carolina." But, of course, the judicial power does not "operate on legal rules in the abstract"; it operates on the rights and liabilities of contending parties with adverse legal interests. California v. Texas (2021). The majority's reasoning cannot be squared with the judicial power vested by the Constitution, the case-or-controversy requirement, or the nature of judicial review.
Yes, California v. Texas. I remember that case well. The Supreme Court could not issue any order that ran against the Affordable Care Act. The judgment could only run against plaintiff's who have injuries that can be remedied.
Justice Thomas illustrates the profound problems with the majority's analysis:
Instead, its animating idea (uncritically borrowed from petitioners) is that Harper I 's "judgment" operated against the 2021 Act as a statute. The majority describes Harper I's "judgment" interchangeably as "enjoining the use of the 2021 ma[p]" and "striking down the 2021 pla[n]." It then reasons that reversing that "judgment" would "negate the force of its order striking down the 2021 pla[n]," thus "alter[ing] the presently operative statutes of North Carolina" such that the 2021 Act would "again take effect." . . .
This reasoning bears no connection to the judicial power of this Court or the court below. . . . Thus, a judgment binds the rights of the parties in that case, see Taylor, and it awards remedies that "operate with respect to [those] specific parties," California. In deciding any case, the court must "ascertai[n] and declar[e] the law applicable to the controversy"; this duty, in turn, implies "the negative power to disregard an unconstitutional enactment" in deciding the case. Massachusetts v. Mellon (1923); accord, Nicholson; Marbury v. Madison (1803). But this negative power of judicial review is not a "power per se to review and annul acts of [legislation] on the ground that they are unconstitutional," Mellon; "to change or to repeal statutes," or to issue orders that "operate on legal rules in the abstract," California. Courts of law simply do not render "judgments" that toggle statutes from "operative" to "inoperative" and back again, as if judicial review were some sort of in rem jurisdiction over legislative Acts.
Roberts has no response to Justice Thomas on this foundational point. If Justice Thomas is right, then the case was moot, and should have been dismissed.
I am disappointed that Justice Barrett joined this analysis. The Chief will do jurisdictional pirouettes like Baryshnikov to reach the result he wants. But Justice Barrett knows better.