The Other Jurisdictional Question in Moore v. Harper
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 th
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