Jackson, J., concurring in judgment
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,[1] 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 va-
- ↑ 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.
