Justice Jackson Really Does Not Like Munsingwear Vacatur

Justice Jackson notes her objection to the Court's standard practice of vacating lower court decisions rendered moot by the prevailing party below.

Last week, when the Supreme Court dismissed Acheson Hotels v. Laufer on mootness grounds, Justice Jackson wrote separately to note her objection to the Court's established practice under United States v. Munsingwear of vacating the decision below when a case has been rendered moot due to the unilateral action of the prevailing party. In Acheson Hotel, the plaintiff had prevailed in the U.S. Court of Appeals for the First Circuit, but then voluntary dismissed her claims after the Court granted certiorari (and her lawyer ended up in a bit of trouble).

Justice Jackson only concurred in the judgment. While she agreed that Acheson Hotels had become moot,  she wrote separately to note her objection to granting Munsingwear vacatur as a matter of course. While acknowledging that this is the Court's "established practice," Justice Jackson argued that "when mootness ends an appeal, the question of what to do with the lower court's judgment, if anything, raises a separate issue that must be addressed separately." Instead of vacating the lower court judgement automatically once the case is rendered moot, Justice Jackson suggested, there should be some showing that vacatur is equitable in the given case.

On today's orders list, the Supreme Court GVR'd (granted, vacated and remanded) three separate cases in which lower court injunctions had been rendered moot. Justice Jackson concurred separately on each order to repeat her objectrion to automatic vacatur. Thus, in Payne v. Biden, Justice Jackson noted:

Although I would require that the party seeking vacatur establish equitable entitlement to that remedy, I accede to vacatur here based on the Court's established practice when the mootness occurs through the unilateral action of the party that prevailed in the lower court. See Acheson Hotels, LLC v. Laufer, 601 U. S. ___ (2023) (Jackson, J., concurring in the judgment).

A similar, though shorter, concurrence also accompanied the orders in Biden v. Feds for Medical Freedom and Kendall v. Doster.

Comments

[Krychek_2]

I think Justice Jackson has the better argument. There is no general rule that says that all lower court decisions will be vacated unless the Supreme Court reviews it on the merits (and that's a good thing). Why should these specific types of cases be an exception?

[Michael P]

I can see why mootness due to unilateral action by the party that prevailed below would often be a sign that the lower decision was vulnerable if the Supreme Court did review it on the merits. In that kind of situation, vacating that vulnerable decision to prevent it from being precedent might be just. And perhaps case-by-case review would require a lot more work by the Court.

However, overall I agree: vacatur should not be the general rule.

[David Nieporent]

.

Why should these specific types of cases be an exception?

Because these specific types of cases are ones where litigants are strategically mooting cases specifically in order to preserve questionable precedents. One shouldn’t be able to win and then take one’s ball and go home to avoid having the validity of that win challenged.

[TheAmazingEmu]

It appears to be the losing party that mooted their case here, which would strengthen the argument that the precedent should be preserved.

[Rossami]

If you’re referring to Acheson Hotel, that’s not true. Laufer prevailed in the 1st Circuit with the claim that she had standing to sue. As the SCOTUS decision put it,
“Laufer has singlehandedly generated a circuit split. The Second, Fifth, and Tenth Circuits have held that she lacks standing; the First, Fourth, and Eleventh Circuits have held that she has it. We took this case from the First Circuit to resolve the split.”

If you’re talking about Payne v. Biden, I think you have that one backwards, too. Payne challenged one of the mandatory vaccine orders. DC Circuit affirmed the dismissal of Payne’s challenge. While the case was being elevated to SCOTUS, the vaccination mandate was revoked.

[Devin Watkins]

Munsingwear seems fine to me when limited to the unilateral action of the prevailing party mooting the case. But the cases that used Munsingwear today were the opposite. The losing part unilaterally mooted the case, and they shouldn’t get Munsingwear vacatur. They can not moot the case, either by not invalidating the underlying action or by agreeing that the case could occur again, if they want to litigate it. Otherwise, it turns into a "if I win great, if I lose I'll just moot the case and try again later."

[George]

In contrast to others posting, I would note that the Constitution requires Under Article III Section 2 that an actual dispute exists for courts to have jurisdiction. If the case is moot, no dispute exists, and therefore there are no longer grounds for the existence of the lower court decision. The courts cannot issue advisory rulings, which is effectively what Jackson is seeking through allowing a lower court ruling to stand if the case is mooted.

[Devin Watkins 2]

The lower court has jurisdiction to issue its decision because there was a controversy at that time. Decisions don’t become invalid because of later circumstances like that.

[Krychek_2]

But every case eventually becomes moot, if for no other reason because the parties eventually die of old age. So under that reasoning, every court decision would need to be vacated.

[MaddogEngineer]

Can't wait for Trump convictions to become moot, to the great disappointment of The Resistance. They'll probably want to force a change in the law about that.

[Michael P]

That would be an argument against vacating any decision that has become moot: Where is the jurisdiction to vacate the decision below that (as Devin Watkins pointed out) was made during a live controversy?

[Bob from Ohio]

A transparent attempt to keep whackadoodle left [9th circuit especially] decisions alive.

[MaddogEngineer]

Perhaps. Ever since I heard of her opposition, I’ve been trying to decide if it’s principled or strategic, given her jurisprudence minority position on the court.

Of course, everything cuts both ways eventually. Could also let some 5th circuit precedents live on.

[Krychek_2]

If that's the issue, then it can be decided case by case rather than by having a flat rule.

[Commenter_XY]

Didn't the 9th try to keep a decision made by one of their lib kooks (Rhinehart) who later died? I seem to recall CJ Roberts writing something about it.

[Rossami]

As a matter of judicial efficiency, Jackson is wrong. A case that is in the process of being challenged is of questionable precedent. When the defender of that lower court decision voluntarily dismisses the case, the reasonable presumption is that he/she thought the decision was going to go the other way.

So enough higher-court justices thought the decision was questionable and the primary defender of the decision also seems to think so – that doesn’t seem like a decision that should remain precedent. “Moot to avoid being reversed” is too susceptible to gamesmanship.

[Sarcastr0]

A bit too thick today to get it; will have to get it from Baude and Epps when next I download my 'casts:

Muppetproof

"We discuss the passing of Justice Sandra Day O'Connor, then turn to two interesting opinions on the shadow docket (in Griffin v. HM Florida and DuPont v. Abbott), and finally break down the Court's first merits opinion of the term in Acheson Hotels v. Laufer, at the intersection of standing and mootness. Will also expresses skepticism about Dan's latest AI habit."