# Moore v. Harper/Opinion of Justice Thomas

SUPREME COURT OF THE UNITED STATES
No. 21–1271
TIMOTHY K. MOORE, IN HIS OFFICIAL CAPACITY AS SPEAKER OF THE NORTH CAROLINA HOUSE OF REPRESENTATIVES, ET AL., PETITIONERS v. REBECCA HARPER, ET AL. ON WRIT OF CERTIORARI TO THE SUPREME COURT OF NORTH CAROLINA [June 27, 2023]
Justice Thomas, with whom Justice Gorsuch joins, and with whom Justice Alito joins as to Part I, dissenting.
This Court sits “to resolve not questions and issues but ‘Cases’ or ‘Controversies.’ ” Arizona Christian School Tuition Organization v. Winn, 563 U. S. 125, 132 (2011); see U. S. Const., Art. III, §1. As a corollary of that basic constitutional principle, the Court “is without power to decide moot questions or to give advisory opinions which cannot affect the rights of the litigants in the case before it.” St. Pierre v. United States, 319 U. S. 41, 42 (1943) (per curiam). To do so would be to violate “the oldest and most consistent thread in the federal law of justiciability.” Flast v. Cohen, 392 U. S. 83, 96 (1968) (internal quotation marks omitted).
The opinion that the Court releases today breaks that thread. It “affirms” an interlocutory state-court judgment that has since been overruled and supplanted by a final judgment resolving all claims in petitioners’ favor. The issue on which it opines—a federal defense to claims already dismissed on other grounds—can no longer affect the judgment in this litigation in any way. As such, the question is indisputably moot, and today’s majority opinion is plainly advisory. Because the writ of certiorari should be dismissed, I respectfully dissent.
I
Here is the case before us in a nutshell: A group of plaintiffs sued various state officials under state law. The defendants raised both state-law and federal-law defenses. In the interlocutory judgment below, the State Supreme Court rejected both defenses and remanded for further proceedings. We granted review to consider the defendants’ federal defense. But then, in subsequent proceedings, the state court revisited defendants’ alternative state-law defense and held that it was meritorious. As a result, the court finally adjudicated the whole case in the defendants’ favor, dismissing the plaintiffs’ claims with prejudice.
This is a straightforward case of mootness. The federal defense no longer makes any difference to this case—whether we agree with the defense, disagree with it, or say nothing at all, the final judgment in this litigation will be exactly the same. The majority does not seriously contest that fact. Even so, it asserts jurisdiction to decide this free-floating defense that affects no live claim for relief, reasoning that a justiciable case or controversy exists as long as its opinion can in any way “alter the presently operative statutes of” a State. Ante, at 7 (internal quotation marks omitted). By its own lights, the majority “is acting not as an Article III court,” Uzuegbunam v. Preczewski, 592 U. S. ___, ___ (2021) (Roberts, C. J., dissenting) (slip op., at 3), but as an ad hoc branch of a state legislature. That is emphatically not our job. Compare U. S. Const., Art. III, §1, with N. C. Const., Art. II, §1.
A
To review the history of this case is to demonstrate that the question presented is moot. In 2021, the North Carolina General Assembly passed an Act to redistrict the State for elections to the U. S. House of Representatives. Plaintiffs-respondents filed an action in state court, seeking to enjoin state elections officials (defendants-respondents here) from ​conducting elections in accord with the Act. They based their claim for relief on the North Carolina Constitution, which they argued prohibits excessive partisan gerrymanders.
Petitioners, state legislators representing North Carolina’s interest in the enforcement of the Act, see N. C. Gen. Stat. Ann. §1–72.2 (2021); Berger v. North Carolina State Conference of the NAACP, 597 U. S. ___, ___, ___–___ (2022) (slip op., at 2, 8–9), raised defenses under both state and federal law. As relevant here, they argued: (1) that partisan-gerrymandering claims are not justiciable under the North Carolina Constitution; and (2) that the State Constitution cannot restrict the General Assembly’s congressional districting legislation under the federal Elections Clause, U. S. Const., Art. I, §4, cl. 1.
Initially, a three-judge trial court endorsed petitioners’ state-law defense and entered a final judgment dismissing plaintiffs-respondents’ claims with prejudice. But, on appeal, the North Carolina Supreme Court reversed that judgment. See Harper v. Hall, 380 N. C. 317, 868 S. E. 2d 499 (2022) (Harper I). In Harper I, the court held that the 2021 Act violated the State Constitution, enjoined its implementation, and remanded the case to the trial court for remedial proceedings. In doing so, Harper I rejected both petitioners’ state-law justiciability defense and their federal Elections Clause defense.
Petitioners then sought this Court’s review of Harper I insofar as it rejected their federal defense. From the start, they faced a significant jurisdictional question. Our ​appellate jurisdiction over state courts is limited to “[f]inal judgments or decrees rendered by the highest court of a State in which a decision could be had.” 28 U. S. C. §1257(a). But Harper I was “a classic example of non-finality”; it was an order that resolved the issue of liability and remanded for remedial proceedings. Taylor v. Board of Ed. of City School Dist. of New Rochelle, 288 F. 2d 600, 602 (CA2 1961) (Friendly, J.). Thus, under the normal rules, Harper I would not be “reviewable by this Court.” Jefferson v. City of Tarrant, 522 U. S. 75, 81 (1997).
Nonetheless, this Court’s precedents have recognized “a limited set of situations” in which “finality as to [a] federal issue” permits our review, even in the absence of a final judgment as to the case. O’Dell v. Espinoza, 456 U. S. 430 (1982) (per curiam) (emphasis added). In granting certiorari, we relied on one of those doctrinal exceptions, premised on the assumption that “the federal issue” in this case would “survive and require decision regardless of the outcome of future state-court proceedings.” Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 480 (1975).
As it turned out, that assumption was wrong. After Harper I, on remand, the trial court adopted a remedial districting plan for the 2022 elections. Petitioners then appealed that order, taking the case to the North Carolina Supreme Court for a second time. Initially, the North Carolina Supreme Court released an opinion applying Harper I and affirming the trial court’s decree. Harper v. Hall, 383 N. C. 89, 881 S. E. 2d 156 (2022) (Harper II). But then, after granting petitioners’ request for rehearing, the court “revisit[ed] the crucial issue in this case: whether claims of partisan gerrymandering are justiciable under the state constitution.” Harper v. Hall, ___ N. C. ___, ___, 886 S. E. 2d 393, 399 (2023) (Harper III). After reexamining “the fundamental premises underlying the decisions in both Harper II and Harper I,” the court “h[e]ld that partisan ​gerrymandering claims present a political question that is nonjusticiable under the North Carolina Constitution.” Id., at ___–___, 886 S. E. 2d, at 400–401. It concluded:
   “This Court’s opinion in Harper I is overruled. We affirm the three-judge panel’s [original] 11 January 2022 Judgment concluding, inter alia, that claims of partisan gerrymandering present nonjusticiable, political questions and dismissing all of plaintiffs’ claims with prejudice. This Court’s opinion in Harper II is withdrawn and superseded by this opinion. The three-judge panel’s 23 February 2022 order addressing the Remedial Plans is vacated. Plaintiffs’ claims are dismissed with prejudice.” Id., at ___, 886 S. E. 2d, at 449.
In short, this case is over, and petitioners won. The trial court’s original final judgment in favor of petitioners, affirmed by the State Supreme Court in Harper III, represents “the final determination of the rights of the parties” in this case. N. C. Rule Civ. Proc. 54(a) (2023). Harper I has been overruled, and plaintiffs-respondents’ claims for relief have been dismissed on adequate and independent state-law grounds. As a result, petitioners’ alternative Elections Clause defense to those claims no longer requires decision; the merits of that defense simply have no bearing on the judgment between the parties in this action. That is the definition of mootness for an issue.
It follows that no live controversy remains before this Court. For any case or controversy to exist here, petitioners must be injured by the judgment below, and we must be able to redress that injury by acting upon that judgment. See, e.g., Food Marketing Institute v. Argus Leader Media, 588 U. S. ___, ___ (2019) (slip op., at 4); see also Ex parte Bollman, 4 Cranch 75, 86 (1807) (“The criterion [of] appellate … jurisdiction, is that it revises and corrects the decisions of another tribunal”). But petitioners are not injured by the judgment of Harper I at all, nor could we redress any ​injury to petitioners by doing anything to it. Whether we accept or reject petitioners’ Elections Clause defense, plaintiffs-respondents’ claims remain dismissed. As far as this case is concerned, there simply is nothing this Court could decide that could make any difference to who wins or what happens next in any lower court. That is the definition of mootness for an appellate proceeding.
The United States understands this. See Supplemental Letter Brief for United States as Amicus Curiae 3 (May 11, 2023) (“[T]he question this Court granted certiorari to decide is now moot because the Court’s resolution of that question could not affect the disposition of this case”). So do the elections officials whose conduct Harper I once enjoined. Supplemental Brief for State Respondents 1 (May 11, 2023) (“[T]his case is moot”). So, too, do the plaintiffs-respondents who started this case in the first place. See Letter Brief for North Carolina League of Conservation Voters, Inc., et al. 2 (May 11, 2023) (“The North Carolina Supreme Court’s February 2022 judgment reversing the same January 11, 2022 trial-court judgment that the North Carolina Supreme Court just affirmed is now a nullity”); Supplemental Letter Brief for Rebecca Harper et al. 1 (May 11, 2023) (“Petitioners have won a full victory in state court”). As one group of plaintiffs-respondents put it, “there is no non-frivolous basis for jurisdiction here.” Ibid.
B
The majority does not contest that the Elections Clause issue in this case was only a defense to plaintiffs-respondents’ claims for relief. Nor does it deny that Harper III overruled Harper I and affirmed the very same trial-court judgment that Harper I had reversed. And it concedes that, as a result, plaintiffs-respondents’ claims have been dismissed in full on state-law nonjusticiability grounds. Thus, the majority does not contend that its opinion on the ​Elections Clause issue could make any difference to the final judgment “adjudicating all the claims and the rights and liabilities of all the parties” in this case. N. C. Rule Civ. Proc. 54(b). That should be the end of the discussion. Because the question presented “cannot affect the rights of [the] litigants in the case before [us],” we “are without power to decide” it. North Carolina v. Rice, 404 U. S. 244, 246 (1971) (per curiam).
Nonetheless, the majority finds that the judgment below still presents a live Article III case or controversy; it then further concludes that the question presented has survived and requires decision under Cox Broadcasting. See ante, at 6–11. In doing so, it relies extensively on petitioners’ “representations” that they “remain bound by the judgment in Harper I.” Ante, at 10; see also ante, at 5, 7, 11. But, of course, parties’ mere representations that they are injured never carry their “burden of demonstrating that they have standing” in this Court. TransUnion LLC v. Ramirez, 594 U. S. ___, ___ (2021) (slip op., at 15) (emphasis added). Nor can such representations affect our “independent obligation to assure ourselves that jurisdiction is proper before proceeding to the merits.” Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U. S. 316, 324 (2008).
To ensure that it has jurisdiction here, the majority must explain how petitioners’ federal defense could still affect “the rights of [the] litigants in th[is] case.” Rice, 404 U. S., at 246. It fails to do so. Instead, it mostly points to ​irrelevant facts about the procedural history of this case and misapplies civil-procedure rules as if Harper I and Harper III did not involve the same case. 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.” Ante, at 7 (internal quotation marks omitted). 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, 593 U. S. ___, ___ (2021) (slip op., at 8) (internal quotation marks omitted). 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.
I start by clearing away some of the brush. True, Harper III did not expressly “revisit” the Elections Clause issue, ante, at 6; true as well, petitioners did not obtain rehearing of Harper I, see ante, at 7. But none of that matters because Harper III’s final judgment mooted the Elections Clause issue in this case by dismissing plaintiffs-respondents’ claims on alternative state-law grounds. Likewise, the idea that ​Harper III did not “alter or amend in any way the judgment in Harper I,” ante, at 9, is both irrelevant and incorrect. It is irrelevant because our jurisdiction requires a case, and this case is over no matter what becomes of the empty husk of Harper I’s interlocutory judgment. It is incorrect because Harper I’s judgment—reversing the trial court’s original judgment and remanding the case—was completely negated by Harper III’s affirmance of the same trial-court judgment.
In the same vein, the majority’s suggestion that Harper I has any “res judicata consequences” is completely inapposite. Ante, at 9 (internal quotation marks omitted). Res judicata is the principle that “[a] final judgment on the merits of an action” bars relitigation “in [a] second action” of the same claim or of issues actually litigated and necessary to the judgment in the first action. Federated Department Stores, Inc. v. Moitie, 452 U. S. 394, 398 (1981); see also Taylor v. Sturgell, 553 U. S. 880, 892 (2008). Harper I was not a final judgment (as the majority concedes by applying Cox Broadcasting), so res judicata simply has nothing to do with it. Nothing decided by Harper I was res judicata in the second state-court appeal, see Southern R. Co. v. Clift, 260 U. S. 316, 319 (1922), nor would Harper I’s interlocutory Elections Clause holding have any res judicata effect in a future action between these parties, see Restatement (Second) of Judgments §27, and Comment h, and Illus. 13 and 14 (1980) (only issue determinations essential to a final ​judgment have preclusive effect; if a defendant obtains a final judgment based on one defense, the court’s rejection of alternative defenses is not preclusive in a later action). At the risk of belaboring the obvious, the clearest proof that Harper I was not a final judgment is Harper III—which “revisit[ed]” Harper I’s determination of a “crucial issue in this case,” ___ N. C., at ___, 886 S. E. 2d, at 399; overruled Harper I’s determination of that issue; and affirmed the very same final judgment for petitioners that Harper I had reversed.
How could petitioners still be injured, and what more could this Court possibly do for them? The majority suggests that the interlocutory injunction issued in Harper I still harms petitioners, see ante, at 7, 10–11, but that idea is untenable. To start, the majority overlooks that the injunction only ran against the conduct of defendants-respondents—the state officials who actually implement election laws—not petitioners as legislators. See Berger, 597 U. S., at ___ (slip op., at 2). Next, the majority fails to consider what it would mean if the injunction is still binding: that defendants-respondents are liable to “be held in contempt and put in jail” if they ever implement the 2021 Act, Richmond Cty. Bd. of Ed. v. Cowell, 254 N. C. App. 422, 426, 803 S. E. 2d 27, 30–31 (2017), even though Harper III dismissed this suit’s challenge to the Act as “beyond the reach of [North Carolina’s] courts,” ___ N. C., at ___, 886 S. E. 2d, at 431 (internal quotation marks omitted). That ​idea defies both common sense and civil procedure. A court simply does not go on enforcing an interlocutory injunction—and imposing contempt sanctions for disobedience—after reaching a final judgment dismissing every relevant claim for relief. Rather, the interlocutory injunction (like all interlocutory orders) merges into the final judgment fully “adjudicating all the claims and the rights and liabilities of all the parties” to the case. N. C. Rule Civ. Proc. 54(b) (emphasis added). “With the entry of [Harper III’s] final judgment, the life of [Harper I’s] injunction came to an end, and it no longer ha[s] a binding effect on any one.” Madison Square Garden Boxing, Inc. v. Shavers, 562 F. 2d 141, 144 (CA2 1977).
In any event, the majority’s analysis plainly does not turn on the belief that any defendant remains liable to potential contempt sanctions and jail time. 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].” Ante, at 7, 9. 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.” Ante, at 7–8 (internal quotation marks omitted). The majority regards this aspect of Harper I’s “judgment” as entirely independent of Harper III’s final resolution of the claims in this case. See ante, at 5–8, 10–11. And it finds its theory “confirm[ed]” by a proviso in a remedial redistricting Act, passed immediately after Harper I, stating that the 2021 Act would “again become effective” if this Court reversed Harper I. Ante, at 8 (internal quotation marks omitted). In short, the “case or controversy” that the majority thinks is still before us has nothing to do with the parties’ rights and liabilities on the claims asserted in this action; rather, it is simply whether ​a particular legislative Act, which Harper I supposedly made inoperative, will again be “operative” or “effective” as a state statute. Ante, at 7–8 (internal quotation marks omitted).
This reasoning bears no connection to the judicial power of this Court or the court below. Judicial power is the power to adjudicate “definite and concrete” disputes “touching the legal relations of parties having adverse legal interests,” Rice, 404 U. S., at 246 (internal quotation marks omitted), by “determin[ing] the respective rights and liabilities or duties” of the parties before a court in a particular case, Nicholson v. State Ed. Assistance Auth., 275 N. C. 439, 447, 168 S. E. 2d 401, 406 (1969). Thus, a judgment binds the rights of the parties in that case, see Taylor, 553 U. S., at 892–893, and it awards remedies that “operate with respect to [those] specific parties,” California, 593 U. S., at ___ (slip op., at 8) (internal quotation marks omitted). 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, 262 U. S. 447, 488 (1923); accord, Nicholson, 275 N. C., at 447, 168 S. E. 2d, at 406; Marbury v. Madison, 1 Cranch 137, 176–178 (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, 262 U. S., at 488; “to change or to repeal statutes,” Person v. Doughton, 186 N. C. 723, 725, 120 S. E. 481, 483 (1923); or to issue orders that “operate on legal rules in the abstract,” California, 593 U. S., at ___ (slip op., at 8) (internal quotation marks omitted). 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.
Indeed, such a conception would contradict the most basic ​premise of judicial review itself. “[A]n unconstitutional provision is never really part of the body of governing law,” for “the Constitution automatically displaces [it] from the moment of [its] enactment.” Collins v. Yellen, 594 U. S. ___, ___ (2021) (slip op., at 35) (emphasis added). Thus, when a court holds a statute unconstitutional, it is emphatically not depriving it of any legal force that it previously possessed as an Act. The court is only deciding “a particular case” “conformably to the constitution, disregarding” a statute that cannot “govern the case” because it is already “void.” Marbury, 1 Cranch, at 178; accord, Bayard v. Singleton, 1 N. C. 5, 7 (1787) (holding that the unconstitutional “act on which [a party’s] motion was grounded … must of course, in that instance, stand as abrogated and without any effect”). “That is the classic explanation for the basis of judicial review” set forth in Marbury and Bayard, and it remains “from that day to this the sole continuing rationale for the exercise of this judicial power.” Mackey v. United States, 401 U. S. 667, 678 (1971) (Harlan, J., concurring in judgment in part and dissenting in part).
The majority’s theory thus fails twice over, both as a description of Harper I’s “judgment” and as an explanation of how any justiciable controversy could exist in this Court. The only power that the North Carolina courts exercised at any stage of this case was that of “determin[ing] the respective rights and liabilities or duties of litigants in [the] controversy” before them. Nicholson, 275 N. C., at 447, 168 S. E. 2d, at 406. Harper I’s judgment line did not read: “Stricken down,” referring to the 2021 Act, but instead: “Reversed and remanded,” referring to the lower court judgment and the case between these parties. 380 N. C., at 404, 868 S. E. 2d, at 560 (some capitalization deleted). The judicial power operates upon parties and cases, not statutes, ​and Harper I was no exception.
Even if it were, we would still have no case or controversy in front of us. A freestanding “judgment” of statutory invalidation—neutralizing the 2021 Act in some manner transcending the final determination of the parties’ respective rights in this case—would not be a judicial action within the meaning of Article III, and it could not be reviewed in this Court. See Prentis v. Atlantic Coast Line Co., 211 U. S. 210, 226–227 (1908). “We sit as a court of law, not a council of revision,” and “[o]ur powers of judicial review are judicial, not legislative, in nature.” Mackey, 401 U. S., at 697 (opinion of Harlan, J.). The only power that we ever could have exercised here was to modify the adjudicated rights and liabilities of the parties with respect to the claims in this action. Because we plainly cannot do so, no matter what we think about the Elections Clause, this proceeding is moot. ​And the idea that we could still decide petitioners’ moot federal defense because it could “alter the presently operative statutes of North Carolina”—even if it cannot affect the ultimate judgment in this action—is wholly foreign to Article III. Ante, at 7 (internal quotation marks omitted).
In that light, the post-Harper I remedial Act and its “trigger provisio[n]” plainly can make no difference to our jurisdiction or lack thereof. Ante, at 8. When passed, that Act was essentially a change in the State’s conduct under judicial constraint (the result of Harper I), but with the declared intention of resuming the original conduct if that constraint were removed. That declaration kept the controversy alive while the constraint still existed, as in Hunt v. Cromartie, 526 U. S. 541, 545, n. 1 (1999). But, after Harper III, there is no more constraint in this case. Harper I has been overruled, and plaintiffs-respondents’ claims have been dismissed in a final judgment. Nothing about this case prevents the State from either enacting or implementing any districting plan. If “the presently operative statutes of North Carolina” need to be “alter[ed],” that is the General Assembly’s job, not ours. Ante, at 7 (internal quotation marks omitted). Regardless, petitioners have fully prevailed in this case, and plaintiffs-respondents have not obtained any enforceable relief that could affect the conduct of future elections.
Indeed, to the extent the trigger provision adds anything to the majority’s analysis, it only underscores the absence of a justiciable case or controversy. A state legislature is ​free to condition the effectiveness of a change in state law on external events, including this Court’s actions in cases properly before it. But, as should be obvious, such a trigger provision cannot be the entire basis of an Article III case or controversy. Where, as here, the Court cannot affect the adjudicated rights and liabilities of the parties in the case below, a state legislature cannot manufacture a justiciable controversy by providing that state law will change in some way depending on how this Court answers a moot question. That would simply be a roundabout way of asking this Court to render an advisory opinion. But “federal courts cannot give answers simply because someone asks.” Uzuegbunam, 592 U. S., at ___ (Roberts, C. J., dissenting) (slip op., at 12). That is true when the request comes from Congress, see Muskrat v. United States, 219 U. S. 346, 360–361 (1911), and it is equally true when the request comes from a state legislature.
​In sum, there is no issue before this Court that can affect the judgment in this action. As such, the question presented is moot, and the writ of certiorari should be dismissed.
II
I would gladly stop there. The majority’s views on the merits of petitioners’ moot Elections Clause defense are of far less consequence than its mistaken belief that Article III authorizes any merits conclusion in this case, and I do not wish to belabor a question that we have no jurisdiction to decide. Nonetheless, I do not find the majority’s merits reasoning persuasive.
The Elections Clause of the Constitution provides that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” Art. I, §4, cl. 1. The question presented was whether the people of a State can place state-constitutional limits on the times, places, and manners of holding congressional elections that “the Legislature” of the State has the power to prescribe. Petitioners said no. Their position rests on three premises, from which the conclusion follows.
The first premise is that “the people of a single State” lack any ability to limit powers “given by the people of the United States” as a whole. McCulloch v. Maryland, 4 Wheat. 316, 429 (1819). This idea should be uncontroversial, as it is “the unavoidable consequence of th[e] supremacy” of the Federal Constitution and laws. Id., at 436. As the Court once put it (in a case about the Article V ratifying power of state legislatures), “a federal function derived from the Federal Constitution … transcends any limitations ​sought to be imposed by the people of a State.” Leser v. Garnett, 258 U. S. 130, 137 (1922).
The second premise is that regulating the times, places, and manner of congressional elections “ ‘is no original prerogative of state power,’ ” so that “such power ‘had to be delegated to, rather than reserved by, the States.’ ” Cook v. Gralike, 531 U. S. 510, 522 (2001) (first quoting 1 J. Story, Commentaries on the Constitution of the United States §627 (3d ed. 1858) (Story); then quoting U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 804 (1995)). This premise is firmly supported by this Court’s precedents, which have also held that the Elections Clause is “the exclusive delegation of” such power, as “[n]o other constitutional provision gives the States authority over congressional elections.” Cook, 531 U. S., at 522–523; see also United States v. Classic, 313 U. S. 299, 315 (1941) (“While, in a loose sense, the right to vote for representatives in Congress is sometimes spoken of as a right derived from the states, this statement is true only in the sense that the states are authorized by the Constitution, to legislate on the subject as provided by [the Elections Clause]” (citations omitted)).
The third premise is that “the Legislature thereof” does not mean the people of the State or the State as an undifferentiated body politic, but, rather, the lawmaking power as it exists under the State Constitution. This premise comports with the usual constitutional meanings of the words “State” and “Legislature,” as well as this Court’s precedents. “A state, and the legislature of a state, are quite different political beings.” Story §628. “A state, in the ordinary sense of the Constitution, is a political community of free citizens … organized under a government sanctioned and limited by a written constitution.” Texas v. White, 7 Wall. 700, 721 (1869). “ ‘Legislature,’ ” on the other hand, generally means “ ‘the representative body which ma[kes] the laws of the people.’ ” Smiley v. Holm, 285 U. S. 355, 365 (1932) (quoting Hawke v. Smith, 253 U. S. 221, 227 (1920)).
​To be sure, the precise constitutional significance of the word “Legislature” depends on “the function to be performed” under the provision in question. Smiley, 285 U. S., at 365. Because “the function contemplated by” the Elections Clause “is that of making laws,” id., at 366, this Court’s Elections Clause cases have consistently looked to a State’s written constitution to determine the constitutional actors in whom lawmaking power is vested. See Arizona State Legislature v. Arizona Independent Redistricting Comm’n, 576 U. S. 787, 795–796, 814 (2015); Smiley, 285 U. S., at 363; Ohio ex rel. Davis v. Hildebrant, 241 U. S. 565, 566–568 (1916). The definitions that most precisely explain this Court’s holdings were given in a state-court case that anticipated Hildebrant and Smiley by several years: “[T]he word ‘Legislature,’ as used in [the Elections Clause] means the lawmaking body or power of the state, as established by the state Constitution,” or, put differently, “that body of persons within a state clothed with authority ​to make the laws.” State ex rel. Schrader v. Polley, 26 S. D. 5, 10–11, 127 N. W. 848, 850–851 (1910).
If these premises hold, then petitioners’ conclusion follows: In prescribing the times, places, and manner of congressional elections, “the lawmaking body or power of the state, as established by the state Constitution,” id., at 10, 127 N. W., at 850, performs “a federal function derived from the Federal Constitution,” which thus “transcends any limitations sought to be imposed by the people of a State,” Leser, 258 U. S., at 137. As shown, each premise is easily supported and consistent with this Court’s precedents. Petitioners’ conclusion also mirrors the Court’s interpretation of parallel language in the Electors Clause in McPherson v. Blacker, 146 U. S. 1 (1892): “[T]he words, ‘in such manner as the legislature thereof may direct,’ ” “operat[e] as a limitation upon the State in respect of any attempt to circumscribe the legislative power.” Id., at 25.
The majority rejects petitioners’ conclusion, but seemingly without rejecting any of the premises from which that conclusion follows. Its apparent rationale—that Hildebrant, Smiley, and Arizona State Legislature have already foreclosed petitioners’ argument—is untenable, as it requires disregarding a principled distinction between the issues in those cases and the question presented here. In those cases, the relevant state-constitutional provisions addressed the allocation of lawmaking power within each ​State; they defined what acts, performed by which constitutional actors, constituted an “exercise of the lawmaking power.” Smiley, 285 U. S., at 364; cf. U. S. Const., Art. I, §7, cl. 2 (describing the processes upon completion of which a bill “become[s] a Law”). In other words, those cases addressed how to identify “the Legislature” of each State. But, nothing in their holdings speaks at all to whether the people of a State can impose substantive limits on the times, places, and manners that a procedurally complete exercise of the lawmaking power may validly prescribe. These are simply different questions: “There is a difference between how and what.” J. Kirby, Limitations on the Power of State Legislatures Over Presidential Elections, 27 Law & Contemp. Prob. 495, 503 (1962).
This is not an arbitrary distinction, but one rooted in the logic of petitioners’ argument. No one here contends that the Elections Clause creates state legislatures or defines “the legislative process” in any State. Smiley, 285 U. S., at 369. Thus, while the Elections Clause confers a lawmaking power, “the exercise of th[at] authority must” follow “the method which the State has prescribed for legislative enactments.” Id., at 367. But, if the power in question is not original to the people of each State and is conferred upon the constituted legislature of the State, then it follows that the people of the State may not dictate what laws can be enacted under that power—precisely as they may not dictate what constitutional amendments their legislatures can ratify under Article V. See Leser, 258 U. S., at 137. ​Accordingly, if petitioners’ premises hold, then state constitutions may specify who constitute “the Legislature” and prescribe how legislative power is exercised, but they cannot control what substantive laws can be made for federal elections.
The majority indicates that it does not perceive this distinction between “substantive” and “procedural” rules, see ante, at 23–24, illustrating its doubts with a rhetorical question: “When a governor vetoes a bill because of a disagreement with its policy consequences, has the governor exercised a procedural or substantive restraint on lawmaking?” Ante, at 24. The answer is straightforward: The power of approving or vetoing bills is “a part of the legislative process” because it is “a part in the making of state laws.” Smiley, 285 U. S., at 368–369; see also INS v. Chadha, 462 U. S. 919, 933, 951, 954, 957, n. 22, 958 (1983) (repeatedly referring to bicameralism and presentment as ​the “procedure” or “procedures” of lawmaking). A Governor’s motives for vetoing a certain bill are irrelevant to the effect of the veto as part of the legislative process, just as the motives that may lead one house of the legislature to reject a bill passed by the other house are irrelevant to the effect of its doing so. Put simply, when this power is conferred on the Governor of a State, it “makes him in effect a third branch of the legislature.” T. Cooley, General Principles of Constitutional Law 50 (1880) (emphasis added); accord, Arizona State Legislature, 576 U. S., at 833 (Roberts, C. J., dissenting) (noting that “approving [and] vetoing bills” are “legislative functions”); Chadha, 462 U. S., at 947 (explaining that “lawmaking” is “a power … shared by both Houses and the President”); La Abra Silver Mining Co. v. United States, 175 U. S. 423, 453 (1899) (noting that Presidential approval “is legislative in its nature”); cf. 1 W. Blackstone, Commentaries on the Laws of England 150 (1765) (“[T]he king is himself a part of the parliament”). This is a question of who, not what, and thus is “a matter of state polity” as far as the Elections Clause is concerned. Smiley, 285 U. S., at 368.
But substantive constraints on what the lawmaking power can do (gubernatorial approval included) demand an entirely different justification—one that the majority never provides. It does not overrule Cook and Thornton to hold that the power to prescribe times, places, and manners for congressional elections is an original power of the people of each State. Nor does it hold that the people are themselves “the Legislature” to which the Federal Constitution delegates that power. See ante, at 17–18. Indeed, the majority devotes little attention to the source and recipient of the power described in the Elections Clause, notwithstanding their direct relevance to the question presented.
Instead, the majority focuses on the power of state courts to exercise “judicial review” of Elections Clause legislation. See ante, at 11–15, 26–30. But that power sheds no light ​on the question presented. In every case properly before it, any court—state or federal—must ascertain and apply the substantive law that properly governs that case. Thus, the court naturally must apply the Federal Constitution rather than any statute in conflict with it. The court must also apply the state constitution over any conflicting statute enacted under a power limited by that constitution. Petitioners’ argument, however, is that legislation about the times, places, and manner of congressional elections is not limited by state constitutions—because the power to regulate those subjects comes from the Federal Constitution, not the people of the State. Right or wrong, this question has nothing to do with whether state courts have the power to conduct judicial review in the first place. To say that “state judicial review” authorizes applying state constitutions over conflicting Elections Clause legislation, ante, at 15, is simply to assume away petitioners’ argument.
III
The majority opinion ends with some general advice to state and lower federal courts on how to exercise “judicial review” “in cases implicating the Elections Clause.” Ante, at 28. As the majority offers no clear rationale for its interpretation of the Clause, it is impossible to be sure what the consequences of that interpretation will be. However, judging from the majority’s brief sketch of the regime it envisions, I worry that today’s opinion portends serious troubles ahead for the Judiciary.
The majority uses the separate writings in Bush v. Gore, 531 U. S. 98 (2000) (per curiam), as a loose touchstone for the kind of judicial review that it apparently expects federal courts to conduct in future cases like this one. On its face, this is an awkward analogy, for there is a significant difference between Bush and Harper I. In Bush, the state court’s judgment was based on an interpretation of state statutory law, enacted by the state legislature. Thus, the relevant ​Electors Clause question was whether, in doing so, the state court had departed from “the clearly expressed intent of the legislature,” 531 U. S., at 120 (Rehnquist, C. J., concurring), “impermissibly distort[ing]” the legislature’s enactments “beyond what a fair reading required,” id., at 115. In Harper I, by contrast, there was no doubt that the state court departed from the clearly expressed intent of the legislature; it rejected the legislature’s enactment as unconstitutional.
By doing so, today’s majority concludes, Harper I did not commit per se error, as the Elections Clause permits state courts to apply substantive state-constitutional provisions to the times, places, and manner of federal elections. At the same time, state courts are warned that they operate under federal-court supervision, lest they “transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.” Ante, at 29. Thus, under the majority’s framework, it seems clear that the statutory-interpretation review forecast in Bush (or some version of it) is to be extended to state constitutional law.
In this way, the majority opens a new field for Bush-style controversies over state election law—and a far more uncertain one. Though some state constitutions are more “proli[x]” than the Federal Constitution, it is still a general feature of constitutional text that “only its great outlines should be marked.” McCulloch, 4 Wheat., at 407. When “it is a constitution [courts] are expounding,” ibid., not a detailed statutory scheme, the standards to judge the fairness of a given interpretation are typically fewer and less definite.
Nonetheless, the majority’s framework appears to demand that federal courts develop some generalized concept of “the bounds of ordinary judicial review,” ante, at 28; apply it to the task of constitutional interpretation within each State; and make that concept their rule of decision in ​some of the most politically acrimonious and fast-moving cases that come before them. In many cases, it is difficult to imagine what this inquiry could mean in theory, let alone practice. For example, suppose that we were reviewing Harper I under this framework. Perhaps we could have determined that reading justiciable prohibitions against partisan gerrymandering into the North Carolina Constitution exceeded the bounds of ordinary judicial review in North Carolina; perhaps not. If not, then, in order to ensure that Harper I had not “arrogate[d]” the power of regulating federal elections, ante, at 29, we would presumably have needed to ask next whether it exceeded the bounds of ordinary judicial review in North Carolina to find that the specific congressional map here violated those prohibitions. After all, in constitutional judgments of this kind, it can be difficult to separate the rule from the fact pattern to which the rule is applied. We have held, however, that federal courts are not equipped to judge partisan-gerrymandering questions at all. Rucho v. Common Cause, 588 U. S. ___, ___ (2019) (slip op., at 30). It would seem to follow, a fortiori, that they are not equipped to judge whether a state court’s partisan-gerrymandering determination surpassed “the bounds of ordinary judicial review.”
Even in cases that do not involve a justiciability mismatch, the majority’s advice invites questions of the most far-reaching scope. What are “the bounds of ordinary judicial review”? What methods of constitutional interpretation do they allow? Do those methods vary from State to State? And what about stare decisis—are federal courts to review state courts’ treatment of their own precedents for some sort of abuse of discretion? The majority’s framework would seem to require answers to all of these questions and more.
In the end, I fear that this framework will have the effect of investing potentially large swaths of state constitutional law with the character of a federal question not amenable ​to meaningful or principled adjudication by federal courts. In most cases, it seems likely that the “the bounds of ordinary judicial review” will be a forgiving standard in practice, and this federalization of state constitutions will serve mainly to swell federal-court dockets with state-constitutional questions to be quickly resolved with generic statements of deference to the state courts. On the other hand, there are bound to be exceptions. They will arise haphazardly, in the midst of quickly evolving, politically charged controversies, and the winners of federal elections may be decided by a federal court’s expedited judgment that a state court exceeded “the bounds of ordinary judicial review” in construing the state constitution.
I would hesitate long before committing the Federal Judiciary to this uncertain path. And I certainly would not do so in an advisory opinion, in a moot case, where “the only function remaining to the court is that of announcing the fact and dismissing the cause.” Ex parte McCardle, 7 Wall. 506, 514 (1869).
I respectfully dissent.
* ↑ Technically, there were two state-court actions below. These actions have been consolidated at every stage and can be regarded as one action for all relevant purposes. For simplicity, I will use the singular. Also for simplicity, I focus here on plaintiffs-respondents’ challenge to the 2021 congressional districting map, putting aside their parallel challenges to the Assembly’s 2021 State House and State Senate maps.
* ↑ In this case, these two inquiries are identical, making the majority’s bifurcated analysis somewhat artificial. To say that an issue “will survive and require decision,” as Cox Broadcasting uses the phrase, simply means that it will not become moot, generally through some other issue independently resolving the case (precisely what happened here). See, e.g., Pierce County v. Guillen, 537 U. S. 129, 141, n. 5 (2003); Florida v. Thomas, 532 U. S. 774, 779 (2001); Jefferson v. City of Tarrant, 522 U. S. 75, 82–83 (1997); Cox Broadcasting, 420 U. S., at 478, 480–481, and n. 9.
* ↑ Incidentally, the majority seriously errs when it says that Harper III “reaffirmed” Harper I’s Elections Clause holding, ante, at 9, apparently referencing Harper III’s statement that “[t]he General Assembly exercises [redistricting] authority subject to the express limitations in our constitution and in federal law,” ___ N. C., at ___, 886 S. E. 2d, at 422; see also ante, at 6. The only “express limitations” Harper III meant were “Article II, Sections 3 and 5,” of the State Constitution, which address only state-legislative districts. ___ N. C., at ___, 886 S. E. 2d, at 422. As Harper III acknowledged, “there is no provision in the state constitution regarding redistricting of congressional districts.” Id., at ___, 886 S. E. 2d, at 419. To the extent that Harper III suggests any view about whether such provisions would be binding if they existed, it seems to suggest agreement with petitioners. See ibid. (“The Federal Constitution … commits drawing of congressional districts to the state legislatures subject to oversight by the Congress of the United States”). But, of course, Harper III had no need to decide that question, because its state-law justiciability holding fully determined the judgment in this action, thus mooting petitioners’ alternative Elections Clause defense.
* ↑ These facts refute the majority’s dismissive reference to Harper III as “a distinct decision concerning remedies,” as well as any suggestion that Harper III was “another case” than Harper I for res judicata purposes. Ante, at 9–10 (internal quotation marks omitted). Harper I and Harper III involved exactly the same case, and there is “only one final judgment per case.” Chaka v. Lane, 894 F. 2d 923, 924 (CA7 1990) (Easterbrook, J.); see also Insurance Co. v. Dunn, 19 Wall. 214, 225 (1874) (“To say that there can be two final judgments upon the same pleadings, in the same cause, in the same court, … involves a solecism”). In this case, it was not Harper I.
* ↑ Nor did Harper III, despite agreeing with petitioners in all other respects, anywhere endorse their belief that some “order striking down the 2021 [Act]” would survive a decision overruling Harper I and dismissing this lawsuit with prejudice. Ante, at 5 (internal quotation marks omitted). To the extent that the majority imputes that idea to Harper III, it again seriously misreads that decision. See n. 3, supra. The majority states that Harper III “did not reinstate the 2021 congressional pla[n] that Harper I had struck down.” Ante, at 5 (citing Harper III, ___ N. C., at ___–___, 886 S. E. 2d, at 446–448). But the part of Harper III that the majority cites had nothing to do with North Carolina’s congressional plan. Instead, it considered whether two state-constitutional provisions, which require that state-legislature districting plans “remain unaltered” until the next census after they have become “established,” N. C. Const., Art. II, §§3(4) and 5(4), prevented the Assembly from revising the 2021 state plans that Harper I had rejected. See Harper III, ___ N. C., at ___–___, 886 S. E. 2d, at 446–448. In determining that the 2021 state plans were never “established,” Harper III did not mean that Harper I somehow still restrains those plans; rather, it indicated that those plans themselves do not restrain the Assembly going forward. Absolutely nothing in Harper III suggests that the North Carolina Supreme Court’s judgments act directly upon legislative enactments—“striking them down” today and “reinstating” them tomorrow—or that the 2021 congressional map remains subject to any restraint left over from Harper I.
* ↑ I assume here that the majority is reading the provision correctly, though it is far from clear that this is actually the case. As relevant, the provision stated that the remedial redistricting plan “is effective contingent upon its approval or adoption by the [trial court],” “unless the United States Supreme Court or any other federal court reverses or stays [Harper I] … (or [Harper I] is otherwise enjoined, made inoperable, or ineffective), and in such case [the 2021 Act] is again effective.” 2022 N. C. Sess. Laws 3, p. 10, §2. The majority’s reading is based on three suppositions that it does not justify. The first is that this provision has any reference at all to events after the 2022 elections, to which the remedial Act was exclusively directed. The second is that the dependent clause following “unless” is applicable even though, under the main clause, the remedial plan was never “adopt[ed]” by the trial court and thus never became “effective.” The third is that Harper III did not “otherwise … ma[ke]” Harper I “inoperable, or ineffective.”
* ↑ The idea of deciding an issue to determine whether a statute shall be effective is not unprecedented, but the precedents do not aid the majority. At times, state legislatures have enacted laws contingent on state-court opinions approving their constitutionality—in fact, such legislation produced the first two opinions addressing the Elections Clause question here (which both reached the opposite conclusion from today’s majority). See Act No. 5, 1863 Vt. Acts & Resolves p. 7, approved, Opinion of Judges, 37 Vt. 665 (1864); 1864 N. H. Laws p. 3061, approved, In re Opinions of Justices, 45 N. H. 595 (1864); see also In re Plurality Elections, 15 R. I. 617, 8 A. 881 (1887) (similar situation and conclusion). Those opinions have always been understood as “advisory opinions.” See, e.g., In re Constitutionality of House Bill 88, 115 Vt. 524, 528–529, 64 A. 2d 169, 171–172 (1949); Goodell v. Judith Basin County, 70 Mont. 222, 231, 224 P. 1110, 1112 (1924). Such advisory opinions may be authorized by some state constitutions, but Article III gives this Court no such power.
* ↑ The only complications with this approach have arisen where a State Constitution did not vest the legislative power wholly in a single representative body, as the Federal Constitution appears to presuppose. Thus, in Hildebrant, the Court rejected as nonjusticiable an argument “that to include the referendum within state legislative power for the purpose of apportionment” was “repugnant to” the Elections Clause. 241 U. S., at 569. Somewhat similarly, in Arizona State Legislature, the Court faced a State Constitution “in which the people of a State exercise legislative power coextensive with the authority of an institutional legislature,” 576 U. S., at 819, with the majority “see[ing] no constitutional barrier to a State’s empowerment of its people by embracing that form of lawmaking,” id., at 808–809. As relevant to identifying the State’s “Legislature,” the majority opinion emphasized that Arizona’s written Constitution “ ‘establishes the electorate of Arizona as a coordinate source of legislation’ on equal footing with the representative legislative body,” id., at 795 (alteration omitted), and thus held that “lawmaking power in Arizona includes the initiative process,” id., at 793; see also id., at 814. No such complications exist in North Carolina, where the State Constitution simply provides that “[t]he legislative power of the State shall be vested in the General Assembly.” Art. II, §1.
* ↑ The Electors Clause provides that “[e]ach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors” for the election of the President and Vice President. Art. II, §1, cl. 2.
* ↑ Contrary to the majority’s suggestion of ambiguity, see ante, at 20, this statement can only have meant that the state legislature’s power to direct the manner of appointing electors may not be limited by the state constitution. No other “limitation upon the State” is possible, for, as the McPherson Court said just a few sentences earlier, “the constitution of the State” is the only “authority” that ordinarily “limit[s]” “[t]he legislative power.” 146 U. S., at 25.
* ↑ The majority states that Smiley “already distinguished” Leser as involving a nonlawmaking function. Ante, at 21. But Smiley distinguished the “electoral,” “ratifying,” and “consenting” functions of state legislatures from their “lawmaking” function under the Elections Clause, 285 U. S., at 365–366, only to explain why the last function must be “ exercise[d] … in accordance with the [State’s] method … for legislative enactments,” id., at 367, including “the participation of the Governor wherever the state constitution provided for such participation as part of the process of making laws,” id., at 370. Nothing in Smiley even hints that a federally delegated power fails to “transcen[d] limitations sought to be imposed by the people of a State” simply because it is a lawmaking function. Leser, 258 U. S., at 137.
* ↑ This admission carries troubling implications for other fields, as comparable “distinction[s] between procedure and substance [are] not unknown in the law.” United States v. Kras, 409 U. S. 434, 463, n. 6 (1973) (Marshall, J., dissenting). For example, our habeas corpus jurisprudence has long distinguished “substantive” constitutional rules from “procedural” ones. Schriro v. Summerlin, 542 U. S. 348, 352, 353 (2004). Our sentencing appellate review jurisprudence similarly recognizes a distinction between the “procedura[l] sound[ness]” of a sentencing decision and “the substantive reasonableness of the sentence imposed.” Gall v. United States, 552 U. S. 38, 51 (2007). And, no less essential a statute than the Rules Enabling Act presupposes a meaningful distinction between “rules of practice and procedure” and matters of “substantive right.” 28 U. S. C. §§2072(a) and (b). Indeed, the constitutionality of the Act rests upon this very distinction. See Hanna v. Plumer, 380 U. S. 460, 470–472 (1965); Sibbach v. Wilson & Co., 312 U. S. 1, 9–10 (1941).