Over the past several years, the U.S. Supreme Court has been vacating lower-court decisions that favor progressives at an alarming rate, effectively removing precedent with one-line orders rather than choosing the more moderate and traditional path of denying certiorari, Professor Lisa A. Tucker has found.

The political importance of this trend cannot be overstated, Tucker argues in a forthcoming article, as the merits of these cases go to the very heart of ideological battles. 

Tucker’s article, “Precedent Unbound: The Supreme Court's Summary Elimination of Liberal Lower Court Rulings,” is forthcoming in Florida Law Review. 

In the past two years alone, the Supreme Court has erased 13 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, President Trump’s travel ban, and the Emoluments Clause, meaning that progressive victories in those areas no longer stand.

In its actions, 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 [to] vacate the decision of the court below. Vacatur under Munsingwear had been extremely rare: On average, the Court vacated only one lower court precedent per year between 1994 and 2016. The Court has vacated as many cases between 2017 and now as between 1994 and 2016.

This pattern of Munsingwear vacatur is significant to litigants, political scientists and legal scholars alike, Tucker contends. Her 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.