Justice Jackson Really Does Not Like Munsingwear Vacatur

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 “estalibhsed 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.

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