The New York Times: “The Supreme Court is increasingly setting aside legally significant decisions from the lower courts as if they had never happened, invalidating them in brief procedural orders. The pace of these actions has increased in the past 22 months, neutralizing important civil rights and civil liberties decisions. Reasoned opinions by the federal appeals courts on issues ranging from voting rights to Donald Trump’s border wall have been wiped from the books, leaving no precedent for the lower federal courts to follow. Legally, it is as if these decisions by the appeals courts, one rung below the Supreme Court, had never existed. The Supreme Court’s final, unilateral exercises of power in these cases have gone largely unreported. The Supreme Court has broad discretion to decide which cases it hears and accepts only a small number each term. Appeals court decisions that the justices choose not to review typically remain in effect in the judicial circuit where they were decided, operating as precedent to be followed by that appeals court and the courts below it.
But when the Supreme Court vacates a lower court decision, that decision is erased, and any subsequent litigation on the issue must begin anew. Since January 2021, soon after Amy Coney Barrett took her seat on the Supreme Court, expanding the conservative majority, the court has relied on a 1950 decision to vacate 13 politically and legally significant decisions issued by federal appeals courts. That case, United States v. Munsingwear, held that when a case becomes moot during an appeal — meaning there is no longer a continuing controversy — the justices can vacate the decision with an order known as a vacatur…”
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