4
MOORE v. HARPER
THOMAS, J., dissenting
late 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 ger-
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