A History of Vacatur
abstract. Vacatur, a seemingly routine appellate tool, has evolved into one of the Supreme Court’s most potent instruments for declaring law. This Article offers the first comprehensive historical account of vacatur, tracing its roots from English and early American practice through its twentieth-century transformations to its contemporary uses. Historically, courts used vacatur to manage dockets, correct procedural irregularities, or enforce reversals on the merits. Modern usage has departed markedly from these roots. The Court now frequently employs vacatur to declare binding legal rules without issuing judgments, effectively circumventing traditional limits on judicial power. Taking seriously the Court’s own insistence on history as a guide to judicial authority, this Article illuminates the growing tension between the Court’s practice and its constitutional and statutory limits.
author. Professor of Law, University of Florida Levin College of Law. My thanks to Will Baude, Sam Bray, Peter A. Bruland, Jud Campbell, Charles Capps, Katherine Mims Crocker, Heather Elliott, Jill Fisch, Kellen Funk, Stephen Griffin, Tara Leigh Grove, John Harrison, Linda Jellum, Jeremy Kidd, Gary Lawson, Tyler Lindley, Merritt McAlister, John McGinnis, Haley Proctor, Keith Whittington, and Michael Wolf for helpful discussion and comments. Thanks to John P. Krause and Connor McClay for research assistance.
Introduction
At first glance, vacatur is a simple, boilerplate remedy tacked on at the end of an opinion.1 Yet a closer look reveals that it has become one of the Court’s most powerful policymaking tools.2 As the Justices have increasingly abandoned dispute resolution in favor of law declaration,3 vacatur has taken on a new function. Vacatur now functions effectively as a cheat code to avoid constitutional limits on judicial power.4
Judicial power “is the power of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision.”5 This definition implies a conceptual distinction between a court’s judgment and any remedy it offers pursuant to the judgment.6 For any appellate court in the common-law tradition, judgment on the merits of a case usually takes one of two forms: reversal or affirmance. If the appellate court reverses on the merits, it might, as a remedy, vacate the lower court’s earlier decision either in whole or in part. Once vacated, lower court “orders are void ab initio and thus lack any prospective legal effect.”7 Sometimes, however, an appellate court will observe that some irregularity, like a lack of jurisdiction, has undermined the lower court’s proceedings. In such cases, the court will issue vacatur first as a judgment and then as a remedy. Thus, vacatur as a judgment (which makes a statement about process rather than the legal merits of a case)8 must be carefully distinguished from vacatur as a remedy (which follows a reversal on the merits).
This distinction matters because a court may only declare substantive law when doing so is necessary to resolve a case on the merits.9 As Chief Justice Marshall observed, law-declaration power arises only when courts fulfill their obligation to decide particular cases.10 For a federal appellate judgment to declare law, that judgment must be made on the merits; the court must either reverse or affirm a lower court’s ruling. This limitation is the fundamental check on judicial power, which has long been understood to be defined as, and limited to, judgment—a limit that distinguishes the judicial power from the legislative.11
In recent years, however, the Court has declared law to govern some of the most controversial legal questions of the day without even pretending to reach a judgment on the merits.12 For example, in June 2024, the Supreme Court vacated judgments by the First and D.C. Circuits in an opinion that overturned the Chevron doctrine.13 It also vacated judgments from the Fifth and Eleventh Circuits in cases dealing with statutes passed by Texas and Florida to regulate social media.14 In each instance, the Court used vacatur to declare law without issuing a judgment on the case’s merits.15
The Court largely abandoned deciding cases long ago.16 For decades, it has used its certiorari power to preselect questions that are not always sufficient to justify a judgment in a case.17 For example, in two of the most contentious cases in recent years—Dobbs v. Jackson Women’s Health Organization18 and Loper Bright Enterprises v. Raimondo19—the Court used its certiorari power to focus review on the Court’s preferred concern, excluding several questions presented by the parties.20 Even as this practice undermined the traditional judicial duty to decide cases, the Justices carefully maintained the fiction that they belonged to a court giving judgments: reversing or affirming the rulings of lower courts. Now, however, that fig leaf is falling away: Justices are abandoning even the pretextual judgments they used to render in favor of vacatur. Just as preselecting questions through certiorari permits the Justices to preselect policy questions ex ante, vacatur allows them to target questions of interest ex post. Vacatur is the latest step in the Court’s transformation from a judicial body that resolves discrete cases into a pseudolegislature that picks how and when it will implement new legal rules.
Because the Court has been clear that history is the appropriate guide to the contours and limits of judicial power,21this Article takes the Court at its word and assesses this new use of vacatur through a historical lens. Though “[t]he precise origins of vacatur . . . are uncertain” and have been described as “shrouded in ancient lore and mystery,”22 this Article uncovers this previously unrecognized history23 to determine if the Court is as faithful to history in deed as it is in word.
A great deal of confusion has festered in the courts about the proper role and definition of vacatur in their ordinary work. But such concerns are easily resolved. Vacatur as a remedy applies in two concrete situations. When a lower court’s judgment is infected by some sort of procedural irregularity—such as lack of standing or fraud on the court—the petitioner should seek, and the court should provide, vacatur as a judgment. When a lower court’s judgment is wrong on the merits, the proper judgment is reversal. In either situation, the remedy of vacatur is available.
As for evaluating modern uses of vacatur, even a brief description of these practices raises two obvious, though often overlooked, concerns. First, in each of these modern uses, the Court grants vacatur as a remedy without first making a judgment. This practice is difficult to square with the nature of remedies, which almost by definition require an antecedent judgment.24 Second, the Court often uses vacatur to target particular legal or policy issues of interest to the Justices, announcing rules that will guide future courts without resolving the dispute at hand. This practice severely strains the boundaries between judicial and legislative powers. It is one thing for a court to declare law while deciding a case; this is a necessary part of judging. It is something else entirely for a court to declare law for others to apply—picking what law it will declare and when—without deciding a case; this is difficult to classify as a judicial function.
This Article evaluates the Roberts Court’s recent activity against its own methodology, taking history to be the measuring stick for the remedial powers of federal courts. There is ample historical support for using vacatur to manage cases in the course of deciding them, to provide relief after a judgment of reversal, or to recognize some procedural irregularity in earlier proceedings. The relevant question for the modern Court is whether there is a fourth mode of appellate decision-making, one that allows a court to discuss the merits and proceed to vacatur without reversing the judgment.
This Article proceeds in four Parts. Part I offers a brief sketch of historical and modern vacatur to orient the reader. Part II provides a more detailed history of vacatur from its English roots through the nineteenth century. Part III traces the development of modern vacatur in the twentieth century. And Part IV challenges the legitimacy of this newer practice, based on its inconsistency with the history of vacatur, and considers some counterarguments to this critique. Should this critique hold, it strongly suggests that the Court’s repeated and increasing use of vacatur to declare law without reaching judgment is illegitimate on the Court’s own terms.
The type of vacatur at issue in this Article affects judicial judgments and decrees rather than administrative actions. There is a robust debate over vacatur under the Administrative Procedure Act. See, e.g., Samuel L. Bray, The Truth of the Truth of Erasure, Yale J. on Regul.: Notice & Comment (Nov. 7, 2024), https://www.yalejreg.com/nc/the-truth-of-the-truth-of-erasure-by-samuel-l-bray [https://perma.cc/TL8R-S3LL]; Jonathan H. Adler, On Universal Vacatur, the Supreme Court, and the D.C. Circuit, Yale J. on Regul.: Notice & Comment (Mar. 1, 2023), https://www.yalejreg.com/nc/on-universal-vacatur-the-supreme-court-and-the-d-c-circuit-by-jonathan-h-adler [https://perma.cc/V8AL-MYK4]; Aditya Bamzai, The Path of Administrative Law Remedies, 98 Notre Dame L. Rev. 2037, 2037 (2023); Emily Bremer, We Have Been Looking in the Wrong Place for the Meaning of “Set Aside” Under the APA, Yale J. on Regul.: Notice & Comment (Apr. 1, 2024), https://www.yalejreg.com/nc/we-have-been-looking-in-the-wrong-place-for-the-meaning-of-set-aside-under-the-apa [https://perma.cc/38HG-6ZF2]; John Harrison, Vacatur of Rules Under the Administrative Procedure Act, 40 Yale J. on Regul. 119, 119-20 (2023); Mila Sohoni, The Past and Future of Universal Vacatur, 133 Yale L.J. 2305, 2309-10 (2023); T. Elliot Gaiser, Mathura Sridharan & Nicholas Cordova, The Truth of Erasure: Universal Remedies for Universal Agency Actions, U. Chi. L. Rev. Online *1 (Aug. 28, 2024), https://lawreview.uchicago.edu/online-archive/truth-erasure-universal-remedies-universal-agency-actions [https://perma.cc/JA3Z-49CW]. Historically, common-law vacatur has played a role as a remedy against administrative errors and overreach. Cf. James E. Pfander & Jacob P. Wentzel, The Common Law Origins of Ex Parte Young, 72 Stan. L. Rev. 1269, 1312-13 (2020) (discussing an early New Jersey case). However, there is an important distinction between vacating agency regulations and vacating lower-court judgments.
See, e.g., Henry Paul Monaghan, On Avoiding Avoidance, Agenda Control, and Related Matters, 112 Colum. L. Rev. 665, 722 (2012) (discussing “the triumph of the law declaration model”); Thomas P. Schmidt, Orders Without Law, 122 Mich. L. Rev. 1003, 1017 (2024) (noting that the Court has become “predominantly a law-declaration court, not a dispute-resolution court”).
Scholars are perhaps more familiar with jurisdictional limits as the traditional means to limit judicial power. See, e.g., Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1869) (“Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.”); Ryan C. Williams, Jurisdiction as Power, 89 U. Chi. L. Rev. 1719, 1727-32 (2022).
See Samuel L. Bray & Emily Sherwin, Ames, Chafee, and Re on Remedies 1021 (4th ed. 2024); see also Morley v. Lake Shore & Mich. S. Ry. Co., 146 U.S. 162, 178 (1892) (Harlan, J., dissenting) (“The remedy for enforcing a judgment, is the life of a judgment.”); Bd. of Comm’rs v. Aspinwall, 65 U.S. (24 How.) 376, 380 (1860) (“All the remedies which any such judgment ordinarily supplies are open to the parties in this case.”). This Article uses the language of judgments and remedies, but the phenomenon extends more broadly. Courts offer a series of prejudgment remedies during case resolution; however, such remedies are available only after a prior legal determination. For instance, preliminary injunctions are available only after satisfying a four-factor test. See Starbucks Corp. v. McKinney, 602 U.S. 339, 342 (2024). Samuel L. Bray notes that this four-factor test is collapsing into a preliminary view of the merits. See Samuel L. Bray, The Purpose of the Preliminary Injunction, 78 Vand. L. Rev. 809, 827-34 (2025). Even if Bray is correct, the preliminary finding on the merits must precede the preliminary injunction. This Article is interested in this general sequence—a legal determination followed by a remedy—most commonly observed in the context of final judgments.
By federal law, vacatur of arbitration awards is only available when the process was infected by fraud, corruption, or arbitrator misconduct. See 9 U.S.C. § 10 (2024). Substantive mistakes (e.g., miscalculations of figures) may lead to modifications. See id. § 11. As to the merits, one feature of vacatur is that it erases any precedential power of decisions reached in the matter at hand. See, e.g., Daniel Purcell, Comment, The Public Right to Precedent: A Theory and Rejection of Vacatur, 85 Calif. L. Rev. 867, 868 (1997) (“If the court grants vacatur, the judgment ceases to have legal effect on the parties or, in most cases, as precedent. Even though the judgment was in no way defective, it is essentially erased.”); Jill E. Fisch, Rewriting History: The Propriety of Eradicating Prior Decisional Law Through Settlement and Vacatur, 76 Corn. L. Rev. 589, 630 (1991) (“Although a vacated decision may remain in the case reporters, its precedential value is extremely limited.” (footnote omitted)).
The Court has “no charter to review and revise legislative and executive action,” unless doing so is necessary to decide the case at hand. Summers v. Earth Island Inst., 555 U.S. 488, 492 (2009). It is not “empowered to decide . . . abstract propositions, or to declare, for the government of future cases, principles or rules of law,” unless the question helps the Court give judgment in the case. California v. San Pablo & Tulare R.R. Co., 149 U.S. 308, 314 (1893); see also William Baude & Samuel L. Bray, Proper Parties, Proper Relief, 137 Harv. L. Rev. 153, 183 (2023) (“[T]he federal courts give judgments that redress the injuries of parties, and it is only in the performance of that duty—and not as an independent duty, or a distinct cause of action, or a stand-alone remedy—that federal judges will say what the law is and what it isn’t.”); Benjamin B. Johnson, The Supreme Court, Question-Selection, Legitimacy, and Reform: Three Theorems and One Suggestion, 67 St. Louis U. L. Rev. 625, 626-30 (2023) (arguing that, while the “point of tribunals is to resolve disputes between the parties,” which requires “render[ing] judgment in the case” and “answering some or all of the questions,” the Court, through the practice of “answer[ing] particular questions instead of deciding cases . . . places itself in real danger” of issuing mere advisory opinions, which would be ultra vires).
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177-78 (1803); see also Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821) (“T]his Court will not take jurisdiction if it should not . . . .”). The case-or-controversy requirement instantiated a narrower conception of the judicial power, reflecting growing English skepticism toward resolutions and advisory opinions. See Philip Hamburger, Law and Judicial Duty 536-41 (2008); Christian R. Burset, Advisory Opinions and the Problem of Legal Authority, 74 Vand. L. Rev. 621, 638-39 (2021). Over time, Americans increasingly understood the judicial role as one of adjudication. Whereas English courts largely drew their jurisdiction from the common law, American courts typically derived theirs from statutes that explicitly granted the power to hear specified “actions, suits, causes, cases, or controversies,” thus sharpening the boundaries of judicial authority. Hamburger, supra, at 537.
This of course raises the important and classic question of whether the Court’s opinion is itself binding or merely an explanation of the judgment. See generally Thomas W. Merrill, Judicial Opinions as Binding Law and as Explanations for Judgments, 15 Cardozo L. Rev. 43 (1993) (arguing that, at least for the executive, opinions are best understood as explanations); Robert Post, The Supreme Court’s Crisis of Authority: Law, Politics, and the Judiciary Act of 1925, 101 Notre Dame L. Rev. (forthcoming 2026) (manuscript at 29 & n.107, 33 & n.127) (on file with author) (distinguishing the different functions of judgments and opinions).
These are the most prominent, but by no means the only, instances where the Court vacated judgments without ruling on the merits. See, e.g., Bissonnette v. LePage Bakeries Park St., LLC, 601 U.S. 246, 256 (2024); Nat’l Rifle Ass’n v. Vullo, 602 U.S. 175, 199 (2024); Fischer v. United States, 603 U.S. 480, 498 (2024); Harrow v. Dep’t of Def., 601 U.S. 480, 490 (2024); Lindke v. Freed, 601 U.S. 187, 204 (2024); Muldrow v. City of St. Louis, 601 U.S. 346, 360 (2024); Chiaverini v. City of Napoleon, 602 U.S. 556, 565 (2024); Starbucks Corp. v. McKinney, 602 U.S. 339, 351 (2024); Cantero v. Bank of Am., 602 U.S. 205, 221 (2024); Gonzalez v. Trevino, 602 U.S. 653, 659 (2024).
See, e.g., Ashutosh Bhagwat, Separate But Equal?: The Supreme Court, the Lower Federal Courts, and the Nature of the “Judicial Power,” 80 B.U. L. Rev. 967, 993-95 (2000) (“For all practical purposes, then, the modern Supreme Court does not resolve disputes between litigants, it does not decide cases, and it does not enforce legal rights or duties. . . . [It] seems to make law in the same way as Congress and other legislatures. . . . [This] appears to be a modern phenomenon.”); see also Post, supra note 12 (manuscript at 47) (observing that in Trump v. United States, 603 U.S. 593 (2024), “the Court did not even bother to resolve the specific controversy in the case before it”).
These are hardly the only examples. A nonexhaustive list of such recent cases includes Calcutt v. Federal Deposit Insurance Corp., 598 U.S. 623, 624 (2023) (per curiam); Flowers v. Mississippi, 586 U.S. 985, 985 (2018) (mem.); Department of Education v. Career Colleges & Schools of Texas, 145 S. Ct. 1039, 1039 (2025) (mem.); Kerr v. Planned Parenthood South Atlantic, 145 S. Ct. 1000, 1000 (2024) (mem.); Catholic Charities Bureau, Inc. v. Wisconsin Labor & Industrial Review Commission, 145 S. Ct. 1000, 1000 (2024) (mem.); and Riley v. Garland, 145 S. Ct. 435, 435 (2024) (mem.). The practice has also been used in many landmark cases. See Johnson, supra note 17, at 796-97 (collecting examples).
See, e.g., TransUnion LLC v. Ramirez, 594 U.S. 413, 424-25 (2021); eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 390 (2006); eBay, 547 U.S. at 395 (Roberts, C.J., concurring); eBay, 547 U.S. at 395-96 (Kennedy, J., concurring); Ortiz v. United States, 585 U.S. 427, 439-41 (2018); Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 217-25 (1995); Owen W. Gallogly, Equity’s Constitutional Source, 132 Yale L.J. 1213, 1217-18 (2023); William Baude, The Judgment Power, 96 Geo. L.J. 1807, 1814 (2008); Amy Coney Barrett, Procedural Common Law, 94 Va. L. Rev. 813, 846-52 (2008).
A plethora of views exist regarding vacatur’s origins. For instance, Justice Jackson asserts that “[a]ll agree . . . that vacatur extends from the historical practice of equity.” Id. Justice Clifford, writing after the Civil War, suggested common-law roots. See Ex parte Lange, 85 U.S. (18 Wall.) 163, 192 (1873) (Clifford, J., dissenting) (“Courts of common law possessed the power to vacate their judgments during the term in which they were rendered, and the rule is still the same in all courts exercising jurisdiction in common-law cases, whether civil or criminal; and the remark is equally correct whether applied to a State or Federal court.”). As this Article shows, both Justices are correct, though the equitable account Jackson later articulated seemed to have prevailed in American courts by the late nineteenth century. See generally Recent Cases, Equity—Judgment—Bill in Equity to Vacate, 9 Harv. L. Rev. 486 (1896) (collecting cases). That view had taken hold at the Supreme Court by 1944. See, e.g., Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 244 (1944).
It is worth noting that the grant, vacate, and remand (GVR) raises similar concerns. In many cases, one might think of the GVR as a soft reversal in light of new precedent, yet the Court will sometimes (for example, in the case of circuit splits) GVR even cases from lower courts with which the Court agrees. Even if the lower court incorrectly addresses the question the Court just decided, there may be other grounds on which the respondent could defend the judgment. The GVR denies the respondent the usual right to make such a defense in the Supreme Court.