# United States Reports/Volume 601/Acheson Hotels, LLC v. Laufer/Opinion of Justice Jackson

​Justice Jackson, concurring in the judgment.
I agree with the Court that this case is moot and that it should be resolved on that basis. But the Court goes further, ordering vacatur of the judgment of the Court of Appeals under United States v. Munsingwear, Inc., 340 U. S. 36 (1950). See ante, at 5–6. In my view, 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.
I
Mootness and vacatur are distinct concepts. Start with mootness. The doctrine of mootness stems from Article III of the Constitution, which permits federal courts to adjudicate only “Cases” and “Controversies.” “Simply stated, a case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U. S. 486, 496 (1969). If a case ​becomes moot, “the existence of a case or controversy” is at an end, and there is therefore no basis for “the exercise of judicial power.” Liner v. Jafco, Inc., 375 U. S. 301, 306, n. 3 (1964); see also Chapman v. Doe, 598 U. S. –––, ––– (2023) (Jackson, J., dissenting). Mootness thus justifies only dismissal. Barring some other justification, we can go no further.
Vacatur is a different animal entirely. Vacatur is a remedy that erases a judgment that has already been rendered. Here, the Court invokes a so-called Munsingwear vacatur, see ante, at 5–6, a species of vacatur that we have sometimes applied to judgments in civil cases that have “become moot while on [their] way here or pending our decision on the merits,” 340 U. S., at 39.
The precise origins of vacatur, both as a general matter and in its Munsingwear form, are uncertain. In fact, some have described the power of a court to vacate a judgment as “shrouded in ancient lore and mystery.” Advisory Committee’s Note on Fed. Rule Civ. Proc. 60(b), 28 U. S. C. App., p. 289. It seems plausible that our authority to vacate a lower court’s judgment under Munsingwear arises from our “supervisory appellate power” to “make such disposition of the case as justice requires.” Walling v. James V. Reuter, Inc., 321 U. S. 671, 676 (1944); see also U. S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U. S. 18, 21–22 (1994). All agree, however, that vacatur extends from the historical practice of equity, which for centuries has provided courts with the power “to protect all rights and do justice to all concerned.” Rubber Co. v. Goodyear, 9 Wall. 805, 807 ​(1870). The Munsingwear remedy, like its vacatur kin, developed from “this equitable tradition.” Bancorp, 513 U. S., at 25.
As an equitable remedy, vacatur “is not granted as a matter of course.” Salazar v. Buono, 559 U. S. 700, 714 (2010) (opinion of Kennedy, J.). Instead, precisely “[b]ecause [vacatur] is rooted in equity, the decision whether to vacate turns on ‘the conditions and circumstances of the particular case.’ ” Azar v. Garza, 584 U. S. 726, 729 (2018) (per curiam) (quoting United States v. Hamburg-Amerikanische Packetfahrt-Actien Gesellschaft, 239 U. S. 466, 478 (1916)). Per historical tradition, a court that is asked to exercise its equitable authority to vacate a lower court’s judgment must determine, in essence, whether it is “most consonant to justice” for the judgment to “remain undisturbed” or be vacated. South Spring Hill Gold Mining Co. v. Amador Medean Gold Mining Co., 145 U. S. 300, 301–302 (1892) (emphasis deleted).
II
Because mootness and vacatur involve different legal analyses, see Part I, supra, I think courts should address them separately. Moreover, at least in theory if not in practice, vacatur does not—and cannot—automatically follow from mootness.
For one thing, automatic vacatur plainly flouts the requirement of an individualized, circumstance-driven fairness evaluation, which, as I have explained, is the hallmark of an equitable remedy. “The essence of equity jurisdiction has been the power … to do equity and to mould each decree to the necessities of the particular case.” Hecht Co. v. Bowles, 321 U. S. 321, 329 (1944). Vacatur is an “extraordinary” exercise of an appellate court’s “equitable” authority. Bancorp, 513 U. S., at 26. As such, it simply cannot be a one-size-fits-all solution.
Second, and perhaps even more fundamentally, automatic vacatur is flatly inconsistent with our common-law tradition ​of case-by-case adjudication, which “assumes that judicial decisions are valuable and should not be cast aside lightly.” Chapman, 598 U. S., at –––. Our legal system rests not only on the holdings of this Court, but also on the reasoned decisions of duly authorized lower court judges. Jurists presiding over cases at every level have a duty “to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). That mootness can sometimes leave parties unable to appeal does not bear on the continued validity of those lower court opinions in any respect.
We do not consider a court’s judgment to be any less binding on the parties simply because there is not an appeal; appeal or not, lower court rulings are still law. And it is not as if a decision rendered by a lower court is less than final, or is not perfected, unless and until it receives the imprimatur of this Court. Indeed, many lower court determinations are not even appealable as a matter of law. See, e. g., 28 U. S. C. § 1447(d) (providing that, with limited exceptions, “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise”); cf. § 1292(a) (authorizing appeals of only certain kinds of interlocutory orders). Our legal system regards those decisions as pronouncements of law nevertheless.
In other words, even if a party cannot appeal, or opts not to do so, lower court judgments are binding and presumptively valid. And the lack of an appeal, on its own, does not suffice to rebut that presumption. Any suggestion to the contrary misunderstands the scope of the authority that all federal judges have pursuant to Article III, and disrespects the time and talent of the jurists who have previously undertaken to assess the merits of the matter.
Nor is the validity of a lower court’s judgment cast into doubt as a result of the case’s subsequent mootness. We do not erase past precedents just because those cases cease to be live, litigated matters. Every federal case fades to black at some point, yet in our common-law system of case-by-case ​adjudication, the rulings that Article III judges have issued in those cases remain good law. “[T]here is no particular reason to assume that a decision, later mooted, is any less valid as precedent than any other opinion of a court.” Mahoney v. Babbitt, 113 F. 3d 219, 222 (CADC 1997).
III A
Why, then, does the possibility of nullifying a lower court’s judgment by ordering Munsingwear vacatur exist? I submit that it serves a specific, equitable function: to address any unjust circumstances or unfairness that might stem from the inability to appeal a particular lower court decision, notwithstanding its presumptive validity. And just as in Munsingwear itself, “the party seeking relief from the status quo of the appellate judgment” bears the burden of establishing “equitable entitlement to [this] extraordinary remedy.” Bancorp, 513 U. S., at 26.
Thus, in my view, sound vacatur arguments must be rooted in fairness. Likewise, I believe that a court’s Munsingwear determination should involve a particularized assessment of whether “the conditions and circumstances of the particular case” warrant vacatur of the lower court’s judgment. Garza, 584 U. S., at 729 (internal quotation marks omitted).
​It is, of course, impossible to catalog all of the potential circumstances that might justify vacatur of a lower court’s judgment on fairness grounds, so I will not attempt to do so here. As a general matter, I believe that a party who claims equitable entitlement to vacatur must explain what harm—other than having to accept the law as the lower court stated it—flows from the inability to appeal the lower court decision. The procedural history of Munsingwear provides one example of the kind of harm that might warrant vacatur. See n. 2, supra. Another stems from the fact that courts “must also take account of the public interest” when making a vacatur determination, Bancorp, 513 U. S., at 26, which raises broader fairness concerns—such as “the orderly operation of the federal judicial system,” id., at 27. For that reason, I think that the Court’s “sensitiv[ity] to Acheson’s concern about litigants manipulating the jurisdiction of this Court,” ante, at 5, could be a relevant vacatur consideration, and is likewise reflected in our prior observation that it would be “strange” to “permit a plaintiff to obtain a favorable judgment, take voluntary action that moots the dispute, and then retain the benefit of the judgment.” Garza, 584 U. S., at 729 (internal quotation marks omitted).
It suffices for now to say that “[f]lexibility rather than rigidity has distinguished” a court’s equitable power and the potential reasons for exercising it. Hecht, 321 U. S., at 329. Still, it bears repeating that the reason for a vacatur remedy must be more than “mere disagreement with the decision that one seeks to have vacated.” Chapman, 598 U. S., at –––. ​Every lower court loser would, of course, prefer that the lower court’s opinion not exist. But in each and every case in our adversarial justice system, one side loses—and generally must accept that outcome.
To me, such first principles about the nature of the vacatur remedy, the design of our common-law system, and the scope of appellate authority best inform how this Court, and other Courts of Appeals, should proceed when addressing a Munsingwear motion. Mindful that vacatur of a lower court’s judgment is an extraordinary equitable remedy designed to ensure fairness, and fully cognizant of the danger of uprooting presumptively valid legal precedents—contributions to the common law that belong to all who are governed by the rule of law in our constitutional system, not just the parties in the particular case—we should carefully evaluate the purported need for vacatur, in terms of the harms it would avert. And in the absence of any demonstrated harm-related justification for vacating a lower court's opinion, we should conclude that “[t]he ‘public interest’ … is generally better served by leaving appellate judgments intact.” Alvarez v. Smith, 558 U. S. 87, 98 (2009) (Stevens, J., concurring in part and dissenting in part).
B
All that said, I am aware that a party who is deprived of the opportunity to appeal due to mootness (like Acheson) might feel that loss acutely. It might even experience the thwarting of its chance to obtain a reversal on appeal as a grave injustice, on par with any other fairness-based justification for vacatur of the lower court’s ruling. I also recognize that this Court has previously expressed sympathy for that view. See, e.g., Camreta v. Greene, 563 U. S. 692, 713 (2011) (suggesting that the inability to challenge “a legally consequential decision” warrants vacatur). But I disagree. There is nothing inherently inequitable about not being able to pursue an appeal.
​To reiterate the basic bottom line: The lack of jurisdiction that prevents an appeal and the set of circumstances that relate to whether the lower court’s judgment should be permitted to stand are entirely distinct. The lower court issued its ruling while the case was alive. And so rendered, that ruling is precedent—“presumptively correct and valuable to the legal community as a whole.” Bancorp, 513 U. S., at 26. The observation that “what is done is done” is thus the starting point for assessing any response to mootness beyond mere dismissal of the appeal.
It is true that the losing party would ordinarily have the right to challenge a lower court’s decision by pursuing an appeal. But that right is not absolute or inviolate. Wanted appeals sometimes cannot proceed for a host of reasons, and in such instances, the losing party is normally stuck with the outcome that the lower court announced after its consideration of the matter in dispute. We do not consider the proposers of unrequited requests for appellate review to have been unjustly wronged.
To be sure, in the instant case, there is another wrinkle: We not only granted Acheson’s petition for certiorari, but we also heard oral argument related to the merits of its claim that the lower court’s judgment was erroneous. Thus, Acheson had a better opportunity than most to achieve the requested reversal of the Court of Appeals’ unfavorable decision. But this Court’s demonstrated interest in reviewing Acheson’s challenge to respondent’s moot legal action does not add anything to the fairness equation. Now that its appeal has been mooted, Acheson is in no different position than the multitude of other litigants who suffered defeat in the Courts of Appeals and will not get a review of their case on the merits from this Court. To sustain a request for ​vacatur, Acheson needs to rely on something more than its own abject disappointment. *** The parties in this case have not provided any equitable basis for vacatur of the Court of Appeals’ judgment, nor has the majority described any, beyond its reference to the Court’s past practices and a citation to Munsingwear. See ante, at 5–6. For the reasons explained above, I would ordinarily not agree to the imposition of a vacatur remedy that was not fully discussed, much less established. But I recognize that this Court’s vacatur ruling is consistent with our “established practice” of vacating the judgment of the Court of Appeals below “when mootness occurs through … the unilateral action of the party who prevailed in the lower court.” Arizonans for Official English v. Arizona, 520 U. S. 43, 70–71 (1997) (internal quotation marks omitted); see also Garza, 584 U. S., at 729; supra, at 19, and n. 3. I concur in the judgment on the basis of that precedent, despite my own views of this practice, because respondent’s voluntary dismissal is the sort of “unilateral action” that we have previously deemed adequate for vacatur.
* ↑ We have sometimes invoked 28 U. S. C. § 2106 as the source of our vacatur authority after mootness arises, see, e. g., Camreta v. Greene, 563 U. S. 692, 712 (2011), but that statute provides only that we may “direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances.” § 2106. And, of course, that statutory provision cannot confer jurisdiction in excess of Article III, from which the limitation of mootness derives.
* ↑ In United States v. Munsingwear, Inc., 340 U. S. 36 (1950), the Federal Government, as plaintiff, had brought both an injunctive claim and a damages claim; it lost the injunctive claim first and was unable to appeal that lower court determination because of intervening mootness. Id., at 37. The unappealable lower court judgment with respect to the injunctive claim then precluded the Government from litigating the merits of its damages claim. Ibid. This Court noted that a vacatur request had been available to the Government to avert this unfairness, but that the Government had “slept on its rights” in failing to seek that particular remedy. Id., at 40–41.
* ↑ The Court has accepted respondent’s claim that she voluntarily dismissed her suit for legitimate reasons, see ante, at 5, and to be clear, I concur with that conclusion. My only point is that any perception that mootness has been procured tactically, based on its timing (here, the mootness occurred after we granted review, oral argument was scheduled, and briefing had begun) or otherwise, would be relevant to determining whether the equitable vacatur remedy is warranted.
* ↑ Our Court might decide not to grant a would-be petitioner’s request for certiorari, for example. Or, even after granting review, we might dismiss the petition after determining that certiorari was improvidently granted.