Canceling Appellate Precedent

Abstract

In recent years, since soon after Justice Amy Coney Barrett assumed her seat on the United States Supreme Court, the Court has erased more than thirteen politically and legally significant opinions written by the federal appeals courts. In deciding to vacate rather than simply deny certiorari, the Court has eliminated—with one sentence orders that offer no explanation—fully briefed, argued, and reasoned opinions on issues such as abortion, the Voting Rights Act, President Trump’s travel ban, and the Emoluments Clause. Consequently, progressive victories in those areas no longer stand.

The Supreme Court used its power to “vacate” lower court rulings, which allows an appeals court to sometimes erase lower court precedents. The Court relied upon United States v. Munsingwear (1950), the first case to hold that when a case becomes moot during an appeal—thereby no longer involving a live controversy appropriate for judicial resolution—the higher court may vacate the decision of the court below. Importantly, Munsingwear is equitable, discretionary, fact-bound, and designed to protect parties from unfavorable rulings that were not finally appealed. Vacatur under Munsingwear has been extremely rare: on average, the Court vacated only one lower court precedent per year between 1994 and 2016. However, the Court vacated as many cases in the past seven years as it did between 1994 and 2016.

But the pattern did not begin with Justice Barrett; since 2017, the Supreme Court has demonstrated a seeming eagerness to nullify lower court precedents at a clip of four per year. Most of these nullifications hindered progressive objectives. In twelve of the thirteen cases since 2021 in our study, the losing party (usually the government) invoked Munsingwear to shield future litigants from precedential rulings that announce outcomes adverse to their political or legal interests.

This pattern of Munsingwear vacatur is extremely significant to litigants, political scientists, and legal scholars alike. This Article examines the previously unanalyzed rise of Munsingwear vacatur. It presents the history of this case; then, through statistical analysis presented in graphs and tables, this Article demonstrates how only recently the Court treats ostensibly moot cases differently, depending almost entirely on the ideological directionality of the federal appeals court opinion. Finally, this Article joins others in calling for more transparency from the Court.

Keywords: federal courts, United States Supreme Court, vacatur, precedent, Munsingwear