The following is a guest post from Richard Bernstein, who wrote this amicus brief in Moore v. Harper but who expresses his own views here:

Although I wrote and joined an amici brief supporting affirmance in Moore v. Harper, recent developments counsel that the best course for the U.S Supreme Court now is to vacate and remand the North Carolina Supreme Court’s February 2022 opinion and order—called Harper I.  A Supreme Court vacatur would enable the current North Carolina Supreme Court to address two points of North Carolina law that became unclear after the oral argument in Moore v. Harper on December 7, 2022.  The first is whether Harper I remains a correct statement of North Carolina law in light of the current North Carolina Supreme Court’s decision to consider overruling Harper I as part of its rehearing of Harper II.  The second is whether, if the North Carolina Supreme Court overrules Harper I, it will also lift Harper I’s prospective injunction against use of the North Carolina legislature’s 2021 map for the 2024 and subsequent congressional elections.

            Let’s begin where everyone agrees:  The North Carolina Supreme Court currently has jurisdiction in its pending rehearing of Harper II to overrule Harper I on state law grounds.  Petitioners in Moore v. Harper nevertheless contend that, because the North Carolina Supreme Court has a 15-day time limit on seeking rehearing, it is too late for the North Carolina Supreme Court to lift Harper I’s prospective injunction and thereby reinstate the 2021 legislature’s map for future elections.  Apparently, in Petitioners’ view, all the North Carolina Supreme Court’s rehearing of Harper II could do by overruling Harper I would be to enable the current North Carolina legislature to enact a new statute with a map identical to the 2021 map, or some other map, that would not be subject to judicial review based on partisan gerrymandering.

            That limit on judicial relief is far from obvious.  Indeed, if North Carolina law is the same as federal law, Petitioners’ limit would be wrong pursuant to Agostini v. Felton, 521 U.S. 203 (1997).  In Agostini, the Supreme Court simultaneously overruled a 12-year-old case called Aguilar v. Fenton, 473 U.S. 402 (1985), and lifted prospectively a permanent injunction issued previously in the Aguilar case itself.  In dissent, Justice Ginsburg, joined by three other Justices, argued that lifting the injunction contravened a Supreme Court rule setting a 25-day time limit for a rehearing petition.  See Agostini, 521 U.S. at 255.  The Agostini majority, however, relying on the principles codified in Federal Rule of Civil Procedure 60(b)(5), ruled that a federal court had no discretion other than to lift the prospective application of the earlier injunction in light of the overruling of Aguilar.  Agostini held that a prospective injunction is inequitable and “cannot be permitted to stand if we find it rests upon a legal principle that can no longer be sustained.”  521 U.S. at 238; see id. at 215.

            Although North Carolina Rule of Civil Procedure 60(b)(5) is identical to its federal analog, perhaps the current North Carolina Supreme Court would adopt a position akin to the Agostini dissenters as North Carolina law and leave the Harper I injunction in place prospectively even if Harper I is overruled on a state law ground.  But that state law issue is for the state supreme court to decide.

            Because only the North Carolina Supreme Court can resolve unclear issues of state law, the Supreme Court’s discretionary and sua sponte decision to vacate and remand in Bush v. Palm Beach County Canvassing Board, 531 U.S. 70 (2000), supports a similar approach in Moore v. Harper.  In Palm Beach, the Supreme Court declined to address “at this time” any version of what we now call the independent state legislature theory because two antecedent points of Florida law were “unclear.”  531 U.S. at 78.  It was only after the Florida Supreme Court’s clarifying decision on remand that the Supreme Court’s majority opinion in Bush v. Gore, 531 U.S. 98 (2000) (per curiam), could honestly say that the Supreme Court was “forced to confront” the federal constitutional issues raised by the recount in the 2000 presidential election in Florida.  Id. at 111.

            Contrast what the Supreme Court faces now if it does not vacate.  Suppose that the North Carolina Supreme Court issues its rehearing decision before the Supreme Court issues its decision in Moore v. Harper.  And suppose the North Carolina Supreme Court overrules Harper I, but does not resolve whether Harper I’s injunction against the 2021 legislature’s map nonetheless remains in place.  It would look like an advisory opinion—or what lay people call a power grab—for the U.S. Supreme Court subsequently to issue a major constitutional decision that either reverses (or affirms) a state court decision that the state court has already overruled.

Alternatively, the Supreme Court could race to get its decision in Moore v. Harper out the door before the North Carolina Supreme Court’s rehearing decision.  Such haste would be just as unseemly.  Just shy of 230 years ago, the Justices of the U.S. Supreme Court explained to President George Washington that a foundation of the rule against advisory opinions is that the Constitution makes the Supreme Court “a court in the last Resort.”  Letter to George Washington from Supreme Court Justices, Aug. 8, 1793.  The Supreme Court should vacate and remand in Moore v. Harper so that it will address any federal constitutional issue in that case only as “a court in the last Resort.”