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Precedent Unbound: The Supreme Court’s Summary Elimination of Liberal Lower Court Rulings

Tucker, Lisa A. and Risch, Michael, Precedent Unbound: The Supreme Court’s Summary Elimination of Liberal Lower Court Rulings (March 19, 2023). Florida Law Review, Vol. 76, (2024 Forthcoming), Available at SSRN: or

“Over the past two years the United States Supreme Court has erased thirteen politically and legally significant opinions written by the federal appeals courts. In vacating rather than simply denying certiorari, the Court eliminated—with one sentence orders that offer no explanation—fully briefed, argued, and reasoned opinions on issues like abortion, the Voting Rights Act, Trump’s travel ban, and the Emoluments Clause, meaning that progressive victories in those areas no longer stand. 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 use its power vacate the decision of the court below. Vacatur under Munsingwear has been extremely rare: on average, the Court vacated only one lower court precedent per year on average between 1994 and 2016. The Court vacated as many cases between 2017 and now as between 1994 and 2016. But the pattern did not begin so recently; since 2017, the Supreme Court has demonstrated a seeming eagerness to nullify lower court precedents, at a clip of four per year. Most of the vacated opinions have furthered progressive objectives. In fact, except for a very brief time between 2012 and 2016, the Court has vacated liberal-leaning precedent at a much higher rate. This pattern of Munsingwear vacatur is significant to litigants, political scientists, and legal scholars alike. This Article seeks to examine the previously unanalyzed history and rise of Munsingwear vacatur. Through statistical analysis presented in graphs and regression tables, the Article demonstrates how the Court treats ostensibly moot cases differently, depending almost entirely on the ideological directionality of the federal appeals court opinion.”

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