By a 5-4 margin, the supreme court dismissed a closely-watched case about ERCOT’s sovereign immunity on jurisdictional grounds: “[A]fter the court of appeals rendered its decision, and before the parties asked us to review that decision, the trial court entered a final judgment in the underlying suit, and that judgment is now the subject of a separate appeal pending in the court of appeals. Because the trial court’s interlocutory order merged into the final judgment and no longer exists, we cannot grant the relief the parties seek. As a result, any decision we might render would constitute an impermissible advisory opinion, and these consolidated causes are moot.”

A dissent by Chief Justice Hecht–no judicial activist, and no frequent user of exclamation points or italics–took issue with this result: “[T[]e court of appeals has already had the opportunity to review the dismissal. Indeed, it was the court of appeals that ordered the dismissal! And by ruling on immunity, this Court would not be infringing on the court of appeals’ judicial power. The court of appeals has already ruled on that issue. There is no reason for the court to reiterate its ruling in a second appeal. It is waiting on this Court to rule. The Court can resolve the parties’ dispute and grant relief, however it decides the immunity issue, but instead it chooses delay and wasting more of the parties’ and judicial system’s time and resources.” (emphasis and exclamation mark in original).

Another concurrence and dissent elaborated further on the themes in these two opinions. ERCOT v. Panda Power, No. 18-0781 (March 19, 2021).

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