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.
