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Lacroix on Temporal Imperialism by the Supreme Court

By Lawrence Solum

Alison L. LaCroix (University of Chicago Law School) has posted Temporal Imperialism (University of Pennsylvania Law Review, Vol. 158, 2010) on SSRN. Here is the abstract:

Issues of time and temporality pervade American constitutional adjudication, at both a doctrinal and a broader, structural level. The doctrinal issue concerns the extent to which judicial decisions operate forward, backward, or some combination of both across time. The structural issue concerns the related and overarching question of how the Supreme Court, as a court, operates in time, and the temporal division of authority between courts and legislatures. In both contexts, the Supreme Court is an actor in time. This Article examines the Court?s treatment of temporal issues through three case studies: (1) a pair of early decisions in which the Court confronted both the transition from the colonial to the republican constitutional regime, and the temporal scope of legislative acts; (2) the Court?s twentieth-century doctrine on adjudicative retroactivity; and (3) the recent case of Grutter v. Bollinger, in which the Court?s temporal imperialism led it to claim ever-greater power to define the relevant timeframe for antidiscrimination law. The Court?s institutional self-presentation suggests that it is immortal and therefore not temporally bound, and that claim of continuity typically extends to its decisions. But the causal flow from institutional to doctrinal continuity sometimes breaks down. Perhaps not surprisingly, these moments of disjunction tend to arise when the Court chooses to allow them to. Even in situations that call into question the continuity of a particular doctrine, therefore, the Court remains master of time in that it as an institution determines when and how the façade of doctrinal continuity is to be breached.

And from the paper:

Grutter represents the high-water mark of the Court?s temporal imperialism. Indeed, the apparently effortless chain of rea- soning by which Justice O?Connor arrives at the twenty-five-year time- frame surpasses even the Court?s twentieth-century retroactivity doc- trine in the confidence it displays toward the Court?s ability to reframe and rearrange temporal issues. The ?before? of the long history of ra- cial discrimination in American society, and law?s efforts first to uphold and then to combat such practices, is erased. Instead, the ma- jority opinion presents an almost technocratically derived model of how long a remedial regime ought to endure, choosing as a starting point the Court?s own previous decision and suggesting a forward march of progress from that point onward. Prospectivity is the me- thod; teleology is the theory; and the Court is the sole arbiter of when the goal has been reached.

A very cool, creative paper.  Highly recommended. Download it while its hot!

Full post as published by Legal Theory Blog on May 05, 2010 (boomark / email).