Page:Moore v. Harper.pdf/42

4 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