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Tucker Co-writes NY Times Op-ed on Impact of Munsingwear Vacaturs

Professor Lisa Tucker

January 09, 2023

Professor Lisa A. Tucker, an expert on the United States Supreme Court, and co-author Stefanie Lindquist of Arizona State University’s Sandra Day O’Connor College of Law, published an op-ed in the New York Times on November 29 titled “How the Supreme Court Is Erasing Consequential Decisions in the Lower Courts.”

The piece describes a new phenomenon in the Supreme Court that has gone almost unnoticed: the use of Munsingwear vacatur to get rid of appeals court decisions that further progressive values and objectives.

“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,” Tucker and Lindquist state in the essay’s opening line. “The pace of these actions has increased in the past 22 months, neutralizing important civil rights and civil liberties decisions.”

Federal appeals courts’ decisions on issues from voting rights to the border wall have been erased, leaving no precedent for the lower federal courts to follow and forcing subsequent litigation on these issues to begin anew.

Since January 2021, when the Supreme Court reached a conservative majority with the appointment of Amy Coney Barrett, the court has relied on the 1950 decision United States v. Munsingwear to vacate 13 decisions issued by federal appeals courts that the co-authors call “politically and legally significant.”

“The recent flurry of Munsingwear vacaturs is sharply at odds with the pace of past court practice,” state Tucker and Lindquist. “Since a 1994 Supreme Court decision scaled back the use of the Munsingwear precedent, the court has cited the case only 48 times to vacate lower court decisions, according to our research. Slightly more than half of those actions occurred in just the past five years, after the appointment of Justice Neil Gorsuch, which maintained a 5-to-4 conservative majority. More than a quarter came in the past 22 months, with the conservatives holding a 6-to-3 majority.”

In most of the cases, the vacated federal appeals court opinions were written by judges appointed by Democratic presidents.

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