Rick H. links to the Supreme Court’s order in Moore v. Harper requesting more briefing. According to the Supreme Court’s docket, no party has raised the fact of the rehearing scheduled in the North Carolina Supreme Court, which has been known publicly for about a month. In that rehearing, the state court may reconsider its previous holding that the state constitution forbids excessive partisan gerrymanders, including partisan gerrymanders of congressional maps.

So the first intriguing part of this case is that the Court raised this sua sponte. Indeed, when it comes to this specific issue of whether there is a “final judgment,” the Court can raise it on its own motion. See Johnson v. California (2004) (“It is our obligation to raise any question of such compliance on our own motion, even though counsel has not called our attention to it.”). Several things crop up…. Warning, long, semi-coherent thoughts ahead!

First, mootness. It was never really a question of mootness. The Supreme Court could always move quickly enough to issue a decision before the North Carolina Supreme Court (even if the North Carolina Supreme Court ultimately reversed itself on the gerrymandering holding), which meant that it could “beat” mootness if it wanted.

So, why did no party raise the North Carolina Supreme Court’s rehearing? I think, and it’s just a guess, none of them thought it would moot the case… yet. So, none of them raised it. And, the United States Supreme Court didn’t ask for anything in the last month. Again, it could issue a decision quickly and beat mootness.

Second, “final judgment” issues at certiorari. But, I think, someone somewhere at the Court–maybe as a result of dissatisfaction with some of the drafts circulating?–raised it as a potential jurisdictional issue under 28 U.S.C. § 1257(a). The Supreme Court only has jurisdiction over a “final judgment” of a state court decision.

Several briefs opposing certiorari raised this issue at the cert stage–the state’s brief opposing cert (pp. 36-38) was one of the better ones. But it mostly disappeared by the merits. Even the Solicitor General’s brief didn’t mention the jurisdictional question at the merits briefing.

At oral argument, the issue almost never arose, and the one time it did Don Verrilli cut off Justice Amy Coney Barrett and pivoted to another point:

JUSTICE BARRETT: Just quickly, Mr. Verrilli. You got some questions about the remedy. And, you know, the Chief Justice was asking about special masters drawing the map, and, you know, here we had experts come in. We’ve been talking primarily about the liability question. You did get some questions about remedy. Do you –I just wanted to give you a chance to say something about our jurisdiction, whether we have jurisdiction to review–

MR. VERRILLI: You know, we–

JUSTICE BARRETT: –the portion–

MR. VERRILLI: –we don’t think there’s a final judgment here yet. I mean, the –the question of the proper remedy is before the three-judge court on remand. And the, you know –and the argument being –that’s at play there is should the court accept the legislature’s remedial plan or the alternative remedial plan drawn by the court? And the answer to that could matter to the way the Court analyzes the issue.

Now, I will say –I take my –the argument of my friends on the other side to be that the two issues of whether you could have a remedial process at all and whether you can have judicial review at all are so intimately bound up that you –you should address that issue, and that’s why I was focused on it.

What was the argument that there was no jurisdiction? And what complication arose now?

Third, the “two track” approach to 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. (That’s the point of the Barrett-Verrilli exchange above.)

So the Court took the case on that basis. The “remedy” track concluded shortly after the “Elections Clause” track. The parties did file notice with the United States Supreme Court about that development.

But something funny happened. An election in North Carolina. The court turned over. And it turned over within the window for filing a petition for rehearing.

This is unusual for a few reasons. First, granting rehearing is rare. The intervening election did change the likelihood of that. Second, the timing for rehearing usually runs roughly conterminously with the timing for seeking certiorari. So if you file for certiorari, your time for rehearing has ended. And third, you usually don’t see two tracks like this in the first place.

But that didn’t happen here because the “remedy” track kept the case alive for much longer than a typical window for rehearing. And it was this second track that could have provided a clearer record for certiorari. To return to the state’s original brief opposing certiorari:

Denying certiorari now, meanwhile, would not necessarily impair this Court’s ability to later review the Elections Clause issues Petitioners raise. If the state supreme court affirms the trial court’s order, Petitioners could again seek this Court’s review. Similarly, even if the state supreme court reverses the trial court, Petitioners could still ask this Court to consider whether the Elections Clause permitted the state courts to invalidate their original maps. Moreover, because Petitioners concede that the 2022 congressional elections will take place under the special masters’ interim map, Pet. 4, Petitioners will suffer no prejudice from letting the ordinary appeals process play out.

So, what now?

Fourth, Cox and “final judgment.” There’s tremendous complexity around a handful of cases in the Supreme Court about what may be a “final judgment.” In a 1975 case called Cox, the Supreme Court enumerated four exceptions to “finality,” three of which (I think) don’t apply here (the federal issue is conclusive, or the outcome of further proceedings in state court is preordained; the federal issue will survive regardless of the state court’s decision; later review of the federal issue cannot be had).

The fourth category is the most controversial and malleable category. The party seeking review might prevail on state ground (that is, the legislature here might win on rehearing), but reversal on the federal issue (the Elections Clause) would preclude further litigation, and refusal to immediately review the decision might “seriously erode federal policy.”

That last category has been reserved for rare situations, such as chilling speech under the First Amendment. But it’s been frowned upon by many members of the Court at various times. It’s also often context specific–and perhaps ad hoc.

One might say that it would seriously erode a federal policy if the United States Supreme Court didn’t resolve this Elections Clause issue, which has been recurring for some time in recent years. That “federal policy” could be styled as the proper role of state legislatures in administering federal elections.

But my sense is the Court is reluctant to expand the use of this fourth category. Just last year, the Supreme Court received a petition for certiorari in a “ministerial exception” case under the First Amendment. The respondents’ brief offered a persuasive explanation of why the case was not yet “final.” (See this brief, pp. 13-19.) Justice Alito, joined by three other justices, offered several pages on the importance of the federal question (indeed, signalling support for petitioners) before agreeing that certiorari was not appropriate (lightly revised):

. . . DeWeese-Boyd argues that because the Supreme Judicial Court of Massachusetts affirmed the trial court’s summary-judgment ruling in an interlocutory posture, its ruling is not a “final judgment” under 28 U. S. C. § 1257. Gordon College responds that the decision is a reviewable final judgment under Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 (1975), but at the very least this threshold jurisdictional issue would complicate our review. The brief in opposition notes, however, that “[i]f DeWeese-Boyd prevails in the trial court, there is nothing that would preclude Gordon [College] from appealing at that time, including seeking review in this Court when the decision is actually final.” On that understanding, I concur in the denial of certiorari.

In Johnson v. California, the Court emphasized that an important federal issue “common to all decisions” of a similar type would not be an exception, for worries that the exception would “swallow the rule.”

Fifth, so, is this a “final judgment” or not? Again, these four Cox exceptions do not fit. But the Court has never exactly been confronted with a case (to my knowledge!) where it appeared at one time that the case was “final,” only to have that undone by a later petition for rehearing. The petition for rehearing en banc cases (mid-twentieth century cases about the structure of the supreme courts in Missouri and Washington) don’t directly apply. And this posture is atypical because of the timing issues I raised earlier. It’s possible the Court concludes that Cox‘s “exceptions” don’t apply to this case and the order remains “final” under 1257–after all, in theory, at any time a court could choose to revisit its decisions under Rule 60 or an equivalent state rule. Whether the fact that the state supreme court is revisiting that decision now makes the difference remains to be seen. I haven’t given it much thought and would need to think about it.

Sixth, why the delay? First, it cannot be said that the Court was unaware of the “vehicle issues” at the certiorari stage. The parties did brief them. But some members of the Court have been champing at the bit to get to this issue. See Justice Kavanaugh‘s separate opinion concurring in the denial of the application for stay: “The issue is almost certain to keep arising until the Court definitively resolves it. Therefore, if the Court receives petitions for certiorari raising the issue, I believe that the Court should grant certiorari in an appropriate case—either in this case from North Carolina or in a similar case from another State.”

No one raised the potential Cox issue after the North Carolina Supreme Court issued its decision. Indeed, I thought of it as a (potential) mootness issue myself. But someone, somewhere at the Court found it an issue. And once the jurisdictional question arose, it took perhaps some internal wrangling to decide that an order for supplemental briefing would be appropriate.

So let’s return to Johnson v. California, which I mentioned in the opening of this post. Johnson was a strange case because portions of the state court’s decision were unpublished and not raised in the original record. After oral argument, the Supreme Court sought supplemental briefing on the “final judgment” issue, and it turned out that the unpublished parts of the case meant that more was pending in the trial court below. The Court found that the case was not “final” under 1257.

Perhaps the vehicle problems at the cert stage should have received more attention. Or the jurisdictional questions should have received more attention in the briefing or at oral argument.

But now, there’s a very real chance the case is tossed out and becomes a footnote alongside Johnson v. California. There is, admittedly, tremendous complexity ahead even on just this one issue. We shall see.