1 Gentithes Sunsets (Page Proof Ready)[1]

SUNSETS ON CONSTITUTIONALITY & SUPREME COURT EFFICIENCY

Michael Gentithes*

ABSTRACT

In the Supreme Court’s most recent terms, the Justices have openly suggested that there might be a temporal limit to the constitutionality of several government policies at bar. Most notably in Voting Rights Act and educational affirmative action litigation, Justices from both sides of the political spectrum have revealed a yearning for some meaningful conclusion to government policies that do not seem to comfortably fit within the Constitution’s strictures on a permanent basis. This desire is thus a notable refrain in constitutional jurisprudence.

This Article presents a unique solution to the Court’s concern—judicially enforced sunsets on the constitutionality of a government policy. Such sunsets can fulfill the Justices’ collective desire while advancing constitutional jurisprudence in a broader spirit of cautious empiricism. The Article fills a gap in the existing scholarship on legal sunsets, building upon the work of other authors that have focused on sunsets in the legislative context. Furthermore, the Article advances a novel justification for judicial sunsets by highlighting the ways in which Supreme Court decision-making would become more efficient if such sunsets were utilized. The Article argues that judicially enforced sunsets on the constitutionality of government policies can reduce the externalities endemic to the relitigation of identical topics that has beset the Supreme Court in recent years. The Article pushes the analysis of sunsets further still by considering their normative strengths and weaknesses, including their logical viability in a coherent conception of constitutional law.

CONTENTS

Abstract ................................................................................................. 373Introduction .......................................................................................... 374I. Defining the Terms ............................................................................ 376

A. The Precedential Weight of an Opinion Containing a Sunset ...... 3801. The Weight of the Decision Prior to the Sunset Date ............... 3812. The Weight of the Decision Following the Sunset Date ........... 382

B. The Appropriate Interval of a Judicially Enforced Constitutional Sunset ................................................................................................ 383

* LL.M., New York University School of Law, 2011; J.D., DePaul University College of Law, 2008; B.A., Colgate University, 2005. I am extremely grateful for the helpful comments and insights of Stephen Siegel, Bill Nelson, Matthew Lawrence, and all the members of the New York University Scholarship Clinic who reviewed this Article.

374 Virginia Journal of Social Policy & the Law [Vol. 21:3

II. Lessons From Legislative Sunsets ................................................... 384III. Sunsets on a Government Policy’s Constitutionality are Logically Viable .................................................................................................... 388IV. How Sunsets Can Make the Supreme Court More Efficient .......... 394

A. Outcome Accuracy ....................................................................... 395B. Reducing the Externalities of Repetitive Litigation ..................... 399

1. The Supreme Court Itself ......................................................... 3992. Litigants before the Supreme Court .......................................... 4063. The Political Branches of Government..................................... 408

C. Coalition Building ........................................................................ 409D. Sunsets and the Rule of Law ........................................................ 411

V. Potential Drawbacks ......................................................................... 413A. Efficiency as a Decision-Making Rubric ..................................... 413B. Rent Extraction ............................................................................ 414C. The Dead Hand of Former Justices .............................................. 415D. Instability and the Rule of Law .................................................... 416

VI. Appropriate Applications for Judicial Sunsets ............................... 418Conclusion ............................................................................................ 420

INTRODUCTION

In some of the most noteworthy cases in recent memory, the Justices of the Supreme Court have conspicuously pressed the defenders of controversial government policies to provide a time frame in which those policies can achieve the government’s asserted interests.1 The desire for some “sunset” to those policies has thus become a notable refrain in the Court’s recent constitutional jurisprudence, particularly in Voting Rights Act and educational affirmative action cases.2 While there is a wealth of scholarship evaluating the characteristics and propriety of general legislative sunset powers and the use of statutory sunset clauses, few evaluations of judicially enforced sunsets on the constitutionality of a government policy exist.

This Article aims to fill that gap in the scholarship. After examining the (relatively scant) commentary on judicial sunsets3 and the existing research regarding the legislative sunset movement in America,4 this Article makes several contributions to the field of research. First, it presents a unique argument in favor of judicial sunsets imposed upon the

1 See Shelby Cnty. v. Holder, 133 S. Ct. 2612, 570 U.S. __ (2013); Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411, 570 U.S. __ (2013). 2 See infra Part I. 3 See, e.g., Vikram David Amar & Evan Caminker, Constitutional Sunsetting?: Justice O’Connor’s Closing Comments in Grutter, 30 HASTINGS CONST. L.Q. 541 (2003); Neal Katyal, Sunsetting Judicial Opinions, 79 NOTRE DAME L. REV. 1237 (2004). 4 See infra Part II.

2014] Sunsets on Constitutionality & Supreme Court Efficiency 375

constitutionality of a government policy. The argument is based upon the ways in which the Supreme Court’s decision-making process would be rendered more efficient if it more frequently and assertively utilized such judicial sunsets.5 This novel efficiency argument demonstrates the broad spectrum of desirable effects that judicially enforced sunsets on the constitutionality of government policies would likely have for various components of the legal regime.

The Article then takes the evaluation of judicially enforced sunsets a step further than previous theorists by evaluating both their normative strengths and weaknesses.6 The Article’s evaluation wrestles with the theoretical ramifications of a Supreme Court acknowledgement that what passes constitutional muster can change over time, allowing a present-day ruling of constitutional validity to come with an expiration date.7 It suggests that judicially enforced sunsets on the constitutionality of a government policy can be squared with the theory and practice of constitutional law.8 Ultimately, the Article concludes that the benefits of clarity and efficiency of such sunsets would far outweigh any costs to the mythological certainty of constitutional law.

In Part I, this Article describes in broad terms what a judicially enforced sunset on the constitutionality of a government program would look like and how it might work.9 It then reviews the literature on legislative sunset powers, determining what lessons can be learned and applied to judicial sunsets.10 Next, the Article defends judicially enforced sunsets as a logically viable part of the Supreme Court’s constitutional jurisprudence.11 In Part IV, the Article argues that the process of litigating and deciding constitutional cases in the Supreme Court would become far more efficient if judicially enforced sunsets became commonplace.12 The Article thus normatively defends such sunsets on the basis of improvements that might accrue in decisional accuracy, reduced external costs of repetitive litigation, more frequent and stronger judicial coalitions, and promotion of Rule of Law values.13 This Article then turns to a consideration of the potential drawbacks of judicial

5 See infra Part V. 6 See infra Parts III and VI. 7 See infra Part III. 8 As I argue in more detail below, it is not necessarily unusual or even inappropriate for a judge’s evaluation of a policy to change over time after subsequent review; a court may commonly revisit an equitable remedy, for example, and reevaluate its effectiveness without altering its assessment of the principle that originally guided the court’s use of that remedy. See infra Part III. 9 See infra Part I. 10 See infra Part II. 11 See infra Part III. 12 See infra Part IV. 13 See infra Part IV.


sunsets, ultimately concluding that, despite the potential pitfalls, sunsets could still be a useful decision-making tool for the Justices.14 Finally, this Article discusses whether such sunsets should only be applied to specific types of policies, such as those seeking to remedy a constitutional wrong, or whether they might be applicable in other arenas, such as national security measures or emergency powers.15

I. DEFINING THE TERMS

In several recent Supreme Court cases, the notion of a sunset on policies designed to right a constitutional wrong, policies which themselves may run afoul of the Constitution, has arisen prominently in two contexts: the landmark Voting Rights Act legislation and educational affirmative action. Taken at face value, the aims of these programs seem unquestionably worthwhile—to allow long-repressed minority groups to speak with an electoral voice equivalent to that of all other Americans, and to improve diversity in an educational setting in order to reduce the gap between minority and majority populations in both educational and professional outcomes. Yet while these aims seem laudable, the Court has conspicuously grappled with the validity of these policies if enacted perpetually.

Only four years ago, questions from both Justice Scalia and Justice Roberts in the Northwest Austin Municipal Utility District No. One v. Holder oral arguments suggested their desire to affix some reasonable endpoint to the Voting Rights Act’s remedy for historical wrongs perpetrated against minority voters.16 Discomfort with perpetual preclearance requirements under Section V of the Voting Rights Act resurfaced from Justices across the political spectrum during last term’s oral arguments in Shelby County v. Holder.17 In that case, the Court

14 See infra Part V. 15 See infra Part VI. 16 See Travis Crum, Note, The Voting Rights Act’s Secret Weapon: Pocket Trigger Litigation and Dynamic Preclearance, 119 YALE L.J. 1992, 2005 n.78 (2010) (quoting Transcript of Oral Argument at 31, Nw. Austin. Mun. Util. Dist. No. One v. Holder, 557 U.S. 193 (2009) (No. 08-322) (question of Roberts, C.J.) (“But at what point does that history . . . stop justifying action with respect to some jurisdictions but not with respect to others that show greater disparities?”)); id. (quoting Transcript of Oral Argument at 51, Nw. Austin. Mun. Util. Dist. No. One v. Holder, 557 U.S. 193 (2009) (No. 08-322)) (question of Scalia, J.) (“Do you ever expect—do you ever seriously expect Congress to vote against a re-extension of the Voting Rights Act?”)). 17 Transcript of Oral Argument at 13, Shelby Cnty. v. Holder, 133 S. Ct. 2612 (2013) (No. 12-96) (question of Breyer, J.) (“And if you have a statute that sunsets, you might say: I don't want it to sunset if it's worked, as long as the problem is still there to some degree. That’s the question of rationality. Isn’t that what happened?”); id. at 35 (question of Kennedy, J.) (“Well, the Marshall Plan was very good, too, the Morale Act, the Northwest Ordinance, but times


considered the constitutionality of the Act’s Section V, which requires certain jurisdictions to obtain federal permission before passing any law related to voting, as well as Section IV, which determines the jurisdictions that must obtain Section V preclearance.18 Section IV’s coverage formula is based upon the use of voting tests or devices prior to the 1964 Presidential election that had particularly deleterious effects on minority voter turnout.19 Originally set to expire after five years, Sections IV and V were reauthorized by Congress for an additional five years in 1970, seven years in 1975, twenty-five years in 1982, and twenty-five more in 2006.20 The coverage formula remained largely unchanged throughout those reauthorizations.21

In its decision in Shelby, the Court ruled unconstitutional the formula in Section IV, holding that the coverage formula based upon forty-six-year-old data was not sufficiently tied to current voting conditions in the covered jurisdictions.22 In so holding, the Court laid bare its concern that the Act’s policies might remain in force perpetually based upon a constitutional imprimatur issued forty-five years earlier under “exceptional” and “unique conditions.”23 The Court emphasized that a statute’s “‘current burdens’ must be justified by ‘current needs,’ and any ‘disparate geographic coverage’ must be ‘sufficiently related to the problem that it targets.’”24 In order to serve its stated purpose constitutionally, the Court held, the Act “must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions.”25 The Court’s struggle to find a likely endpoint to a remedial government policy approved nearly half a century ago led it to

change.”); id. at 47 (question of Scalia, J.) (“I don't think there is anything to be gained by any Senator to vote against continuation of this act. And I am fairly confident it will be reenacted in perpetuity unless—unless a court can say it does not comport with the Constitution. You have to show, when you are treating different States differently, that there's a good reason for it.”); id. at 60 (question of Breyer, J.) (“And at some point that historical and practical sunset/no sunset, renew what worked type of justification runs out. And the question, I think, is has it run out now? And now you tell me when does it run out? What is the standard for when it runs out? Never? That’s something you have heard people worried about. Does it never run out? Or does it run out, but not yet? Or do we have a clear case where at least it doesn’t run out now?”). 18 Shelby, 133 S. Ct. at 2618 (2013). 19 Id. at 2619. 20 Id. at 2620–21. 21 Id. 22 Id. at 2627–28. 23 Id. at 2630 (quoting S.C. v. Katzenbach, 383 U.S. 301, 334–35 (1966)). 24 Id. at 2627–28 (quoting Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 203 (2009)). 25 Id. at 2629.


invalidate the coverage formula in Section IV, effectively sunsetting the Act’s application in its original form.26

Similar themes have arisen in the Court’s affirmative action cases. Justice O’Connor’s 2003 majority opinion in Grutter v. Bollinger explicitly referenced a timeframe during which the admissions policy at issue there should expire: “[w]e expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”27 As former acting Solicitor General Neal Katyal has

26 Id. at 2630–31. The Court’s apparent disdain for an open-ended commitment to the strictures of Section V has led some commentators to suggest that by using a judicially-announced sunset in cases of “pocket-trigger” bail-ins of new jurisdictions into the preclearance requirements of the Voting Rights Act, judges can ensure that jurisdictional gerrymanders are impossible even with the constitutionality of the Act called into question. These “pocket triggers” are made possible under section 3 of the Voting Rights Act.

Put simply, section 3 authorizes courts to impose preclearance in response to violations of the Fourteenth and Fifteenth Amendments. To do so, the court must first find intentional discrimination. Then, at the remedial stage, the district court has discretion to retain jurisdiction and impose preclearance. One district court has held that section 3 requires multiple constitutional violations, but other courts have imposed preclearance through consent decree without addressing the issue. Additionally, district courts have construed section 3 to permit targeted preclearance, requiring the submission of only certain types of voting changes. Once preclearance has been imposed, the district court has discretion to determine how long the jurisdiction will remain bailed-in.

Crum, supra note 16, at 2006–08. In fact, such sunsetted decisions are already common in section 3 pocket trigger jurisprudence in the district courts:

For example, the Sanchez court, responding to a racial gerrymander, ordered New Mexico to preclear only redistricting legislation for the next ten years. The Chattanooga and Los Angeles County bail-ins followed a similar model. Other pocket trigger cases have used either targeted preclearance (Arkansas) or a sunset date (Escambia, Thurston, Buffalo, and Charles Mix counties).

Id. at 2016. 27 Grutter v. Bollinger, 539 U.S. 306, 343 (2003). Justice O’Connor noted “[i]t has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased.” Id. This Article considers the meaning of Justice O’Connor’s pronouncement in more detail later. See infra Part V.


argued, “at least one way to view [Justice O’Connor’s statement] is as a judicial sunset. On this reading, Justice O’Connor was worried about a holding by the Court that would prevent affirmative action policies at universities from being contested in perpetuity.”28 In last term’s argument in Fisher v. University of Texas at Austin, which considered affirmative action admissions policies at public universities again only ten years post-Grutter, that sentiment echoed across the bench.29 As discussed in more detail below,30 the Court’s 7-1 decision remanding the case to the Fifth Circuit to apply a more demanding version of strict scrutiny highlighted the Justice’s discomfort with perpetual approval of affirmative action policies.31

In each of these recent cases, the Court has stretched for some kind of judicially enforced sunset on the constitutionality of the government policies at issue. While the Court has not yet directly described or enforced such a sunset, its jurisprudence begs the question whether a Supreme Court sunsetting power is in the offing and, if so, what shape it should take.

Some scholars, most notably Judge Guido Calabresi, have proposed a general judicial sunset power applicable to any positive law, including

28 Katyal, supra note 3, at 1238. Some commentators have argued that O’Connor’s Grutter opinion signaled her desire that the Court’s stance on affirmative action established in Bakke some twenty-five years earlier would have been different. See Amar & Caminker, supra note 3, at 549 (“In Grutter, we speculate, Justice O’Connor was somewhat uncomfortable with using race-conscious admissions decisions to attain the compelling goal of racial diversity in higher education. But at the same time, we surmise, she was worried that an abrupt about-face (rather than gradual weaning) from Bakke would immediately, openly and notoriously undo the country’s recent progress towards a more integrated society.”). 29 “And by the way, do you think that Grutter—this goes to Justice Breyer’s question—do you think that Grutter held that there is no more affirmative action in higher education after 2028?” Transcript of Oral Argument at 11, Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411 (2013) (No. 11-345) (question of Scalia, J.). “Grutter said there has to be a logical end point to your use of race. What is the logical end point? When will I know that you’ve reached a critical mass?” Id. at 46 (question of Roberts, C.J.). “Mr. Garre, I think that the issue that my colleagues are asking is, at what point and when do we stop deferring to the University's judgment that race is still necessary [as an admissions factor]?” Id. at 48–49 (question of Sotomayor, J.). 30 See infra Part V. 31 The Court went to great lengths in its recent Fisher opinion to note that such policies must survive the “searching examination” of strict scrutiny. Fisher, 133 S. Ct. at 2421. Future approval was far from guaranteed; Justices Scalia and Thomas wrote separately to highlight their disapproval of the University’s admissions policy and willingness to overrule Grutter. See id. at 2422–34 (Scalia, J., concurring, and Thomas, J., concurring).


norms created legislatively.32 A similarly expansive version of judicial sunsetting power was backed in the late 1970s by former Minnesota legislator Jack Davies, who supported a “non-primacy of statutes act” that would render all statutory law equivalent to common law—and therefore subject to judicial revision and refinement—after twenty years on the books.33 This kind of sweeping judicial sunset power raises perhaps insurmountable separation of powers questions by significantly and openly expanding the ability of the judiciary to alter statutory law and thus “legislate from the bench.”

This Article’s focus, and I believe the Supreme Court’s as well, is more circumspect. This Article will evaluate the potential for Supreme Court decisions to uphold a law or policy while forthrightly stating that its constitutionality is open to reconsideration only after a fixed term of years. While the same separation of powers concerns persist with such a sunset, they are reduced because these sunsets will allow the judiciary to continue playing its more traditional role of defining the boundaries of the Constitution’s text, rather than openly reforming (or developing entirely new) statutory norms.

A. THE PRECEDENTIAL WEIGHT OF AN OPINION CONTAINING A SUNSET

Neal Katyal has argued that Justice O’Connor’s opinion in Grutter may provide a template for how a judicially enforced constitutional sunset could be announced and what effects that announcement would have for practicing lawyers and the public at large:

[T]he Court can hand down an opinion and announce that its holding is entitled to the full effect of the stare decisis doctrine for a set number of years (e.g., “In five years, we will be completely open to reconsideration of these claims.”), or that it will be binding law until a designated event (e.g., “Following the cessation of hostilities with Japan and Germany, we will be completely open to reconsideration.”). After the elapse of that time period, both lower courts and the Supreme Court would not be bound by the decision, though they could of course follow its reasoning and logic. In effect, the decision would become something akin to an out-of-circuit precedent for a federal court of appeals, in that it

32 GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES 82 (1982). 33 Davies argued this would “free[] the judicial branch to act on the great body of statutory law and to act retroactively. Under it the judiciary may rework twenty-year-old statues without being limited, as it is today, to dubious stretching of legislative intent or to using constitutional law doctrines.” Jack Davies, A Response to Statutory Obsolescence: The Nonprimacy of Statutes Act, 4 VT. L. REV. 203, 218 (1979) (emphasis removed).


would have no formal binding weight as law, but its reasoning could be cited as persuasive authority via an affirmative codification of the old decision.34

According to Katyal, then, judicial sunsets could notify the public that a decision retains its binding weight until a specified time, at which point they become mere persuasive authorities. Sunsets thereby invite relitigation at the sunset date, as both proponents and opponents of a decision will seek to cement their position as a permanent piece of the Court’s jurisprudence. While Katyal’s suggestion as to how the Court should define the end-point to a sunsetted decision is too imprecise,35 his depiction of the weight that a decision containing a sunset ought to carry is helpful.

1. The Weight of the Decision Prior to the Sunset Date

The default lifetime of any Supreme Court decision is perpetual; the strong tradition of stare decisis ensures that any decision the Court renders is automatically afforded a vaunted status that can only be perturbed under highly unusual circumstances.36 Only by breaking with its own stare decisis tradition, a route I have counseled against elsewhere,37 can the Supreme Court in any way update or revise a difficult decision in a close case on the basis of better information.

Sunsets on constitutionality announced by the Supreme Court offer a middle ground. The Court can reach a decision that retains the authority of the stare decisis tradition, but explicitly upholds a policy for only a designated period of time. During that period, the decision is the unquestionable law of the land.

Stare decisis will counsel the Justices to leave in place the temporary period of validity that was announced in the initial sunset decision. After all, the ruling that the constitutionality of a government policy will be reconsidered at a specified time is itself a ruling entitled to full precedential weight. The Court can rely upon that decision in denying certiorari to cases raising the same issue prior to the sunset. The Court

34 Katyal, supra note 3, at 1244–45. 35 See infra Part I.B. 36 The Court’s most definitive statement on those circumstances is its decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 854–55 (1992). For a discussion on the appropriateness of the factors considered there, see Michael Gentithes, In Defense of Stare Decisis, 45 WILLAMETTE L. REV. 799 (2009). 37 See generally Gentithes, supra note 36 (defending the stare decisis doctrine and suggesting a reconsideration of the factors that counsel against overruling precedent).


could thus uphold a sunsetted decision without any meaningful reconsideration throughout the interval prior to the sunset date.

Admittedly, a decision that includes a sunset on a government policy’s constitutionality can itself be overruled prior to the sunset date if the Court is willing to frequently break with the stare decisis tradition. But if no sunset were written into the original decision, the Court would be far more likely to revisit the issue (or a nearly identical one) almost immediately. The Court’s recent jurisprudence, especially regarding affirmative action, bears this out.38 On the other hand, a decision that sets forth a sunset date that is the earliest point at which the Court is willing to revisit an issue provides cover for the Justices to allow the program to play out in its current form for a set period while proponents and opponents gather more data on its effectiveness. By employing a sunset on a ruling as to a government policy’s constitutionality, the Court gives itself greater justification for that kind of trial run of a program.

2. The Weight of the Decision Following the Sunset Date

Once a decision has passed its stated sunset, it would no longer be binding on the Court; its authority will be purely persuasive for the Supreme Court itself. Parties on both sides of the issue will therefore be motivated to relitigate the issue in the hopes of entrenching their view permanently. Because that decision can still be relied upon by the lower courts, however, the Court can avert opening a legal void in the area should there be little push for relitigation or a delay in identifying and presenting the appropriate test case. If the Court chose that route, it would leave the sunsetted decision in place for some time after the sunset date.

The weight of the sunsetted decision in the lower courts, however, will not have changed at all.39 As the Supreme Court has repeatedly noted in the context of apparent changes in its jurisprudence, “‘[i]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.’”40 Similarly, lower courts should not presume that a decision that reaches its sunset age is no longer controlling. Reaching that sunset merely reopens the issue and invites reconsideration by the Supreme Court. Until such time

38 See infra Part V.A. 39 My proposal, then, is distinct from Katyal’s. He suggests that all sunsetted decisions would be only persuasive authority for Circuit Courts once they have passed the sunset date. Katyal, supra note 3, at 1244–45. 40 Agostini v. Felton, 521 U.S. 203, 237 (1997) (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989)).


as that reconsideration happens and a new decision announces a change of tack, the prior holding would control.

This is not to say that the lower courts cannot take issue with the logic and reasoning of a sunsetted decision. Some ruling that at least suggests discomfort with that sunsetted decision must be made by the lower courts in order for a new case to arise that presents the question of whether the government policy at issue remains constitutional. But the lower courts themselves should not engage in invalidating the government policy wholesale; rather, they can suggest that such a policy ought to be reconsidered for whatever reasons merit that treatment while explicitly upholding it under the terms of the Court’s previous ruling until the Court itself decides that the policy should be invalidated.

B. THE APPROPRIATE INTERVAL OF A JUDICIALLY ENFORCED CONSTITUTIONAL SUNSET

Setting an appropriate time frame for a judicially enforced sunset on the constitutionality of a government policy will be a delicate balancing act. Although the Court would undoubtedly struggle to square that circle, I offer a few provisional thoughts on the issue for the sake of more thoroughly defining the kind of sunset power I will analyze in the following Parts.

While it may be tempting to assign significance to the occurrence of a specified event as the proper sunset date,41 this has the potential to ignite interminable debate (and litigation) over the precise meaning and application of the sunset trigger.42 A more precise time frame, set in terms of years, seems best. The proper length of time will certainly be difficult to identify. When legislatures seek a specific date upon which reauthorization of a law under consideration will be required,43 Professor Rebecca Kysar has rightfully suggested that “the sunset date should occur when a law begins to produce net costs in light of new information or intervening events.”44 Judicial sunsets should likewise delineate an interval during which an appropriate amount of new information can be gleaned to determine the costs of the policy in terms of constitutional infringements and compare those costs to the gains achieved towards the government’s asserted interests. Making that estimate will still involve all the inherent vagaries of predicting what real-world effects a particular

41 Katyal, supra note 3, at 1244–45. 42 This would undermine the settlement purposes of a sunset discussed in more detail later. See infra Part V.A. 43 I discuss this issue in the legislative context in more detail below. See infra Part II. 44 Rebecca M. Kysar, Lasting Legislation, 159 U. PA. L. REV. 1007, 1050 (2011). Kysar adds that “[i]dentifying this point at the time of the sunset’s enactment, however, will prove challenging, if not prohibitively costly.” Id.


policy will have once it is put into practice. Nonetheless, Justices should engage in that exercise so that a precise time period that requires no additional interpretation can be communicated to interested parties.45 As discussed in greater detail below,46 this will also allow the political branches and perhaps society as a whole to take the issue off the political agenda, relegating a divisive debate to the back burner even while its ultimate resolution remains unsettled.

II. LESSONS FROM LEGISLATIVE SUNSETS

In this Part, the Article outlines the history of sunsets attached to legislative norms, which was the initial subject of my research for this Article. In the process, I discuss the goals of such sunsets and shed light on the potential aims of a judicially enforced sunset on the constitutionality of a government policy.

There is a long tradition in American legal thought regarding the utility of sunsets in our legal norms. Views on the topic can be traced back as far as the writings of Thomas Jefferson, who argued that “[e]very constitution . . . and every law naturally expires at the end of 19 years.”47 The idea of generational laws was propounded by other founding fathers as well. Both Alexander Hamilton and James Madison advocated for the use of sunset provisions in particularly controversial forms of legislation or thorny policy choices.48 Theory on the validity of legislation across generations has been a refrain in other countries too.49

45 Should that estimate prove wildly inaccurate, the Justices of course have the option of issuing a further sunset date. 46 See infra Part V. 47 John E. Finn, Sunset Clauses and Democratic Deliberation: Assessing the Significance of Sunset Provisions in Antiterrorism Legislation, 48 COLUM. J. TRANSNAT’L L. 442, 445–46 (2010) (quoting Letter from Thomas Jefferson to James Madison (Sept. 6, 1789), reprinted in THE PAPERS OF THOMAS JEFFERSON XV 396 (Julian P. Boyd et al. eds., 1958)). 48 See Kysar, supra note 44, at 1014–15 (citing THE FEDERALIST NO. 26, at 168 (Alexander Hamilton) (Jacob E. Cooke ed., 1961)); 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 587 (Max Farrand ed., 1911). Kysar also notes that future Supreme Court Justice William O. Douglas, who was at the time a Securities and Exchange Commission director in the Roosevelt Administration, argued in favor of sunsets on legislation establishing administrative agencies as a tool to avert agency capture. Kysar, supra note 44, at 1015 (citing WILLIAM O. DOUGLAS, GO EAST, YOUNG MAN, THE EARLY YEARS: THE AUTOBIOGRAPHY OF WILLIAM O. DOUGLAS 294 (1974)). 49 For instance, John Maynard Keynes suggested that:

[w]e cannot expect to legislate for a generation or more. The secular changes in man’s economic condition and the liability of human forecast to error are as likely to lead to mistake in


Modern American consideration of legal sunsets began with political theorist Theodore Lowi’s work in the late 1960s regarding a legislative sunset power. In his book The End of Liberalism, Lowi argued that the federal government had become so bloated with unnecessary bureaucratic hurdles enforced by myriad administrative agencies that a paradigmatic change in thinking was needed to alter the status quo.50 Lowi counseled in favor of a specific time limit for all laws creating a federal agency.51 In addition, “Lowi proposed a five- to ten-year limit on the life of all congressional acts, hypothesizing that as the sunset approached, the pressure of legislative review would diminish the effect of interest group politicking.”52 Lowi theorized that the sunset dates would have a “guillotine effect,” not necessarily eliminating federal agencies but at least enhancing the effectiveness of Congressional oversight and leading to needed reorganization of oversized and mismanaged bureaucracies.53

By the 1970s, Lowi’s views gained traction with small government activists across the country.54 The good-government advocacy group Common Cause, launched by John Gardner, Lyndon Johnson’s secretary of health, education, and welfare, began to promote “sunset legislation” that would automatically terminate administrative agencies periodically unless the legislature chose to reauthorize them.55 Common Cause first succeeded in passing such legislation in Colorado in 1976, and “[t]wenty-four states enacted Sunset laws during the fourteen months between the first enactment in Colorado . . . and the Washington law

one direction as in another. We cannot as reasonable men do better than base our policy on the evidence we have and adapt it to the five or ten years over which we may suppose ourselves to have some measure of prevision; and we are not at fault if we leave on one side the extreme chances of human existence and of revolutionary changes in the order of Nature or of man’s relations to her.

Katyal, supra note 3, at 1241 (quoting JOHN MAYNARD KEYNES, THE ECONOMIC CONSEQUENCES OF THE PEACE 190 (1920)). 50 THEODORE J. LOWI, THE END OF LIBERALISM: IDEOLOGY, POLICY, AND THE CRISIS OF PUBLIC AUTHORITY 309–10 (1969); see also Chris Mooney, A Short History of Sunsets, LEGAL AFFAIRS (Jan./Feb. 2004), http://www.legalaffairs.org/issues/January-February-2004/story_mooney_janfeb04.msp. 51 LOWI, supra note 50, at 309. 52 Manoj Viswanathan, Note, Sunset Provisions in the Tax Code: A Critical Evaluation and Prescriptions for the Future, 82 N.Y.U. L. REV. 656, 659 (2007). 53 Mooney, supra note 50. 54 Mooney, supra note 50. 55 Id.; Dan R. Price, Sunset Legislation in the United States, 30 BAYLOR L. REV. 401, 401 (1978).


approved on June 17, 1977.”56 Every state legislature subsequently at least considered sunset laws, with over half of the states enacting them.57 By the early 1980s, thirty-four states had sunset laws on their books.58 Common Cause also pushed for a federal sunset law, which “would have subjected virtually all federal programs to strict review and evaluation every four years.”59 That proposal, however, died in committee in 1977.60 A later effort to pass a federal “Sunset Act,” which would have provided a general ten-year sunset provision for every federal agency program, survived the Senate in 1979 but died in the House.61

The past thirty years have witnessed the emergence of a more limited form of sunset provision attached to specific pieces of legislation in a variety of fields. These first became prevalent in income tax legislation referred to as tax “extenders” that Congress typically renews at or shortly after the sunset date, such as the research and development credit.62 During the George W. Bush administration, sunsets became important components of major tax legislation as a whole, including the Economic Growth and Tax Relief Reconciliation Act of 2001 and the Jobs and Growth Tax Relief Reconciliation Act of 2003.63 Legislation with a specific expiry date, or what professor Jacob Gersen has called “temporary legislation,” has also proliferated in other areas of law:

[t]o name only a handful of applications, temporary legislation has been used in immigration policy, taxation of life insurance, election law, agricultural policy, judicial rules, international trade policy, internet

56 Price, supra note 55, at 403. 57 Id. at 416. 58 Mooney, supra note 50. 59 Id. 60 See id. (“By the spring of 1977, the sunset law, championed by Democratic senator Edmund Muskie of Maine and supported by President Carter, headed the Congressional agenda. Once in committee, however, the bill was bottled up by legislators who favored more oversight but opposed the automatic expiration of government programs and the bill’s ‘rigid structure of evaluation.’ ”); see also Sunset Act of 1977: Hearing on S. 2 Before the Subcomm. on Intergovernmental Affairs: Comm. on Governmental Affairs, 95th Cong. (statement of Elmer B. Staats, Comptroller Gen. of the United States), available at http://www.gao.gov/assets/100/98383.pdf. 61 See Symposium, The Federalist Society 2011 National Lawyers Convention, Showcase Panel IV: A Federal Sunset Law, 16 TEX. REV. L. & POL. 339, 342 (2011) (speech of Professor Thomas W. Merrill); see also Bill Summary & Status, 96th Congress (1979–1980), H.R. 2., http://ecips.loc.gov/cgi-bin/bdquery/D?d096:1:./temp/~bd3tdN::. 62 Kysar, supra note 44, at 1016–17. 63 Id. at 1017. As Mooney has argued, “[u]nder the Bush Administration, sunsetting has been reduced to a spoonful of sugar that helps controversial legislation go down.” Mooney, supra note 50.


taxation, congressional responses to judicial decisions, bankruptcy law, energy policy, telecommunications policy, government reform, and tax policy generally.64

The success of legislative sunsets is a matter of some debate. Neal Katyal has argued that state legislatures’ sunset powers helped them reduce government waste and slow the expansion of administrative agencies. “[W]hen states have adopted sunset provisions, for example, the upshot has been dramatic change and innovation: one in five agencies that are reviewed under sunsets are terminated, one in three are modified, and ‘less than half’ of such agencies are ‘re-created with little or no change.’”65 However, others have claimed that sunset laws have largely failed insofar as they have not meaningfully reduced government spending or arrested the rapid multiplication of administrative agencies. Chris Mooney pointed out:

[i]n 1978, The New York Times reported that under Colorado’s sunset law $212,000 in state funding was spent to review 13 agencies. This led to the termination of just three small agencies, a savings of $6,810. Colorado wasn’t unique: In Nebraska and Louisiana, every agency scheduled to expire was re-established by the legislature.66

A study by Richard Kearny in 1990 found that:

[S]unset laws, when first adopted, achieved moderate success in eliminating dubious occupational licensing commissions . . . [but] larger agencies were uniformly successful in justifying their continued existence by mustering interest group testimonials and compiling elaborate studies suggesting that they do good deeds.67

The debate over the success or failure of legislative sunset powers and statutory sunset provisions sheds important light on the metrics of “success” one might apply to judicial sunsets. The sunset movement’s advocates were largely inspired by the hope that the axe would frequently fall on numerous government bureaucracies. Many were disappointed with the relative resiliency of most administrative agencies. However, theorists such as Lowi may have found those same sunsets successful because, although they may not have meaningfully reduced

64 Jacob E. Gersen, Temporary Legislation, 74 U. CHI. L. REV. 247, 255–56 (2007). 65 Katyal, supra note 3, at 1240 (quoting MARK R. DANIELS, TERMINATING PUBLIC PROGRAMS: AN AMERICAN POLITICAL PARADOX 34 (1997)). 66 Mooney, supra note 50. 67 Symposium, supra note 61, at 344 (speech of Professor Thomas W. Merrill).


the size and scope of government, sunset powers and clauses did force legislatures to review the effectiveness of, and ongoing need for, a variety of government policies and agencies that would have otherwise been authorized perpetually. Periodic review of administrative agencies might be seen as effective insofar as it duplicates the periodic requirement for politicians to stand for election; while those reviews do not necessarily lead to changes in the status quo, they at least require standing agencies to demonstrate their merits to receive reauthorization at the hands of their legislative overseers.68 Some theorists also promote sunsets because they provide a needed avenue for the modernization of the legal regime based upon increased information on the effects of those norms in the real world, rather than mere ex ante conjecture on the likely repercussions of a new law.69

III. SUNSETS ON A GOVERNMENT POLICY’S CONSTITUTIONALITY ARE LOGICALLY VIABLE

Thus far, I have outlined the characteristics of a judicially enforced sunset on the constitutionality of a government policy in broad strokes. I then reviewed the history of legislative sunsets, highlighting their proficiency at creating the conditions for meaningful periodic review of government programs. Judicially enforced sunsets on the constitutionality of a government policy might likewise allow for meaningful review of the constitutional consequences of a law over time. But is that a task the judicial branch, specifically the Supreme Court, can perform while maintaining a credible and coherent constitutional regime? This Part considers whether a sunset to a law’s constitutionality can be reconciled with modern constitutional theory, or if, instead, the idea that a law’s constitutionality can expire is a non sequitur.

A judicial ruling requiring some automatic review in the future is not inappropriate or even unusual. Consider a court’s exercise of its power to enforce an equitable remedy. As Justice Kennedy has noted in the context of school desegregation decrees, “[t]he essence of a court’s equity power lies in its inherent capacity to adjust remedies in a feasible and practical way to eliminate the conditions or redress the injuries

68 Price, supra note 55, at 417. 69

In sum, the benefits of sunset clauses as elements of statutory design generally fall into three categories—deliberative, informational and distributive. This suggests strongly we should expect to see sunset clauses in policy environments dominated by informational uncertainty, risk (both social and electoral) and typified by a high potential for political conflict regarding the allocation of power.

Finn, supra note 47, at 449. See also Davies, supra note 33, at 218, 229.


caused by unlawful action.”70 Therefore, in administering such a desegregation decree, “‘[t]he task is to correct, by a balancing of the individual and collective interests, the condition that offends the Constitution.’”71 Courts administer those and similar equitable remedies in order to ensure that as the facts of a case change, the decision can change along with them.72 In fact, a court would err if it failed to modify an injunction or consent decree in light of dramatic changes in circumstances.73 There can be frequent reconsideration of an equitable remedy without necessarily discarding the principle that justified that remedy in the first place. The remedy may no longer be appropriate simply because of changes in the facts to which it was previously applied—not because the principle that justified the remedy (say, the desirability of a unitary school system) is any less valid.

A similar argument can be pressed widely in constitutional jurisprudence. A principle of constitutional law may justify a given decision today, but not at a later time. This is not necessarily because the principle has changed or lost its justificatory power. Instead, that principle’s application has changed because the facts that dictated its application have changed too. As professors Geoffrey Stone and William Marshall have contended, “[t]he principles enshrined in the Constitution do not change over time. But the application of those principles must evolve as society changes and as experience informs our understanding.”74 A judicially enforced sunset on the constitutionality of a government policy could be considered a change not in the basic constitutional theory underlying a decision, but rather a change in the application of that theory to the government policy at bar. If later reconsideration after the sunset period leads to a ruling that the policy is unconstitutional, that is a ruling on the policy, not the constitutional theory that originally justified it. The facts have simply changed, and so the legal theory upon which its constitutionality was based, while still valid, is no longer sufficient support for it. In this way, a later ruling

70 Freeman v. Pitts, 503 U.S. 467, 487 (1992). 71 Id. (quoting Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15–16 (1971)). 72 In the context of a school desegregation decree, this means that a court’s openly remedial order should be modified when the school district has become sufficiently “unitary.” Id. at 486. 73 Agostini v. Felton, 521 U.S. 203, 215 (1997). 74 Geoffrey Stone & William Marshall, The Framers’ Constitution, 21 DEMOCRACY (2011), available at http://www.democracyjournal.org/21/the-framers-constitution.php. “[T]hose who framed our Constitution were steeped in a common-law tradition that presumed that just as reason, observation, and experience permit us to gain greater insight over time into questions of biology, physics, economics, and human nature, so too would they enable us to learn more over time about the content and meaning of the principles they enshrined in our Constitution.” Id.


denying the constitutionality of a government policy which was previously upheld is not necessarily indicative of a change in the Constitution or its meaning.75

Not all commentators would so readily agree, however, to that much fluidity in the understanding of a policy’s status as constitutional or unconstitutional. As Professors Vikram David Amar and Evan Caminker have noted, generally the Court has preferred a position supporting an idea of constitutional rulings that are immutable over time. Amar and Caminker argued that in James B. Beam Distilling Company v. Georgia:

[T]he majority said that when the Court announces a ruling, call it ruling “X,” even if ruling X changes the status quo, the proper understanding is that ruling X was always the law (whether or not we realized it before), and that nothing has changed other than our awareness of what the law is. This suggests that judges are supposed to just say what the law “is now” and assume it always was and always will be so.76

Justice Powell’s opinion in Regents of the University of California v. Bakke also highlights how mutable constitutional decisions “based upon shifting political and social judgments, undermines the chances for consistent application of the Constitution from one generation to the next, a critical feature of its coherent interpretation.”77 Instead, Justice Powell recommended a more absolutist understanding of the Constitution and the strictures it imposes on policymakers, achieving greater historical continuity that lifts the Court’s decisions “above the level of the pragmatic political judgments of a particular time and place.”78

What these positions presume is the general public’s inability to grasp or accept any shifts in constitutional jurisprudence. The rights established in that document are amongst our society’s greatest treasures, so the argument goes. They are self-evident and necessarily everlasting;

75 The Court’s decision in Shelby could be considered one example. For Chief Justice Roberts, the Voting Rights Act’s “current burdens” always needed to be justified by “current needs” in order to be constitutional. Shelby, 133 S. Ct. 2619. It wasn’t until 2013 that Section IV failed to meet that requirement, leading Roberts to rule as he did. Id. at 2627. 76 Amar & Caminker, supra note 3, at 551–52 (citing James B. Beam Distilling Co. v. Georgia, 501 U.S. 529 (1991)). 77 Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 299 (1978) (citing Pollock v. Farmers’ Loan & Trust Co., 157 U.S. 429, 650–651 (1895) (White, J., dissenting)). 78 Id. (quoting A. COX, THE ROLE OF THE SUPREME COURT IN AMERICAN GOVERNMENT 114 (1976)).


any effort to redefine their contours must be undertaken with utmost caution. Constitutional sunsets take account of the fact that constitutional rights are so firmly entrenched by our nation’s founding document that infringement upon them can be tolerated, if at all, for only a limited period of time, and then only where the interest the government asserts to justify that infringement (and its policy) is compelling. But the issue that such critics raise runs deeper—it is the inconsistency in arguing that the understanding of the Constitution can change in any way over time. As Amar and Caminker put it in the context of the Equal Protection Clause, “why should Justice O’Connor’s or anyone else’s reading or application of the Fourteenth Amendment change over the next 25 years?”79 The Supreme Court’s power has traditionally been conceived of as the ability to define what the law is—not what the law is for a short period, after which a monumental shift is not only possible but perhaps probable.80

There are several responses to this immutability critique. First, the Court’s decision to “sunset” a particular law or policy may not represent a departure from an immutable understanding of what the law of the Constitution “is.” It could instead be construed as the Justice’s acknowledgement of their own fallibility in the effort to discern that law. The Justices may sometimes fail to accurately describe the content of the category of “constitutional law” without any additional empirical data, based upon real-world experimentation, of what a law or policy achieves in society. No matter the outcome of that reconsideration, the Justices can always maintain either that the policy was constitutional or unconstitutional from its inception—it just took the Court an intervening period to recognize the policy’s true characteristics. That position is in logical conformity with the suggestion that the Court only declares what the law is and does not make changes to it.

Second, there can be little doubt that even if constitutional law is generally immutable, in some cases, for instance those involving a government policy designed to remedy an historic wrong, the policy may only meet with the unalterable requirements of the Constitution for a limited period of time, namely until that remedy has been achieved. Even critics of Justice O’Connor’s statement in Grutter that the

79 Amar & Caminker, supra note 3, at 546. 80

Traditionally, judicial power exists so that judges can say what the law is now—‘jurisdiction’ is, after all, the power to ‘say the law’—rather than so judges can ‘make’ law by declaring that it is was once one thing (in 1978), will now be a new thing (in 2003), and will be something else again in the future (2028).

Id. at 551.


affirmative action policy at issue might not be valid in twenty-five years’ time have acknowledged that practical truth. Amar and Caminker have agreed that:

[A] constitutional requirement of a temporal limit makes some analytic sense as applied to remedial race-conscious affirmative action; at some point in time, and because of intervening causal factors, a program designed to remedy a past wrong is so far removed from that wrong that it ceases to be a meaningful remedy.81

To suggest that such programs be given a sunset date upon which reevaluation of the policy’s constitutionality is permissible does not undermine the conception of constitutional law and constitutional principles as everlasting and unalterable.82

Although this argument answers the criticism that judicial sunsets are logically inconsistent with the proper understanding of constitutional

81 Id. at 543. The approach of at least some of the Justices in recent Voting Rights Act litigation has echoed the same sentiment.

Implicitly, the Roberts Court is going to be embracing Guido Calabresi’s theory if they strike down Section 5 [of the Voting Rights Act] as unconstitutional. The Rehnquist and the Roberts Courts both cut back on Section 5 fairly steadily—not in huge ways but they cut back on it—and their cutbacks have basically been overridden by Congress as part of the sunsetting process, so the stakes are now higher. And they’ve suggested in the Northwest Austin case, where they engaged in a ridiculous exercise of statutory interpretation, that they are willing to reconsider the constitutionality, and there might indeed be five votes to strike it down.

Symposium, supra note 61, at 364-65 (speech of Professor William N. Eskridge, Jr.). 82 Furthermore, complete uniformity in the application of immutable constitutional principles may at times simply be impractical. Even if the meaning of the Constitution remains static, enforcing the limits to government action it delineates may not always happen instantaneously. Take the (in)famous passage from Brown II that permitted Southern states to implement the understanding of the Equal Protection Clause in that decision “with all deliberate speed.” Brown v. Bd. of Educ., 349 U.S. 294, 301 (1955). While that decision announced the impermissibility of school segregation, it left room for that constitutional rule to be implemented over a period of years (although perhaps too many). Amar & Caminker, supra note 3, at 553 (“‘[A]ll deliberate speed’ [is] a term that has been criticized as countenancing Southern defiance of federal judicial authority.”). The Court thereby adhered to the presumption that it merely states what the law is, not what it might someday become, while acknowledging that enforcement of that law is not always instantaneous.


rulings as immutable, the alleged inconsistency in such a sunset may not be a fatal flaw even if it did exist. That alleged inconsistency exaggerates the common understanding of the Court’s work and may only trouble dogmatic legal mythologists. An open acknowledgement that the contours of constitutional law change over time is only problematic if society is truly convinced that the Justices illuminate what the law of the Constitution is and always has been. As a nation, we are mature enough to understand that constitutional law is not a Platonic form with an external existence known and understood only by Supreme Court Justices. Decisions can be overruled, after all, although stare decisis (and the rule of law more generally) frowns upon such drastic changes of legal direction. There can be a situation where a policy is found constitutional, put into effect, and then some time later found unconstitutional after repeated challenges and underlying factual changes. That route to constitutional change comes with significant transaction costs, both in terms of the number of times parties will have to relitigate the issue and the general uncertainty surrounding the policy as it is subject to ongoing legal challenge. But an upfront statement that the Court will reconsider a policy’s constitutionality at a specific time reduces those transaction costs and gives the Court an opportunity to be certain that its first decision was the right one.83

In reality, the American constitutional project requires that judicial statements of what the law “is” be refined and adjusted in myriad ways to account for changes over time in our society.84 Denying the need for an evolving law of the land and unnecessarily proscribing the Supreme Court from taking its proper role in that evolution only perpetuates divisive and destructive disagreement over thorny issues of public policy. Through application of sunsets on constitutionality, the Supreme Court can make appropriately well-informed decisions, recalibrate those decisions over time after more substantive debate, and perhaps, as I discuss below, achieve advancements in society and constitutional law that would otherwise be unattainable.

83 Judicially enforced sunsets on constitutionality are not an invitation for the Court to adopt a more activist posture. Such sunsets do favor judicial compromise on close cases, but should be more permissive regarding experimental government programs. In that case, the Court is actually showing deference to the government by allowing it to try new policies that may be widely beneficial. Although the Court’s rulings will be more fluid and have the temporality one is accustomed to from legislative policy pronouncements, rather than judicial decisions which are merely stating the boundaries within which most legislative output must fit, they will remain broadly deferential towards the government, at least in the short term period of the sunset itself. 84 Michael Gentithes, Precedent, Humility, and Justice, 18 TEX. WESLEYAN. L. REV. 835, 873–78 (2012).


IV. HOW SUNSETS CAN MAKE THE SUPREME COURT MORE EFFICIENT

Having suggested that enforced sunsets on the constitutionality of a government policy can be logically integrated with a cogent theory of constitutional law, this Part evaluates the normative desirability of such sunsets in our constitutional regime. Ultimately, sunsets on constitutionality can be a useful tool for the Court to increase the efficiency of its decision-making process.

The term “efficiency” itself can be controversial in legal circles, and many might consider it anathema to constitutional law in particular. It can conjure the image of a statistician-jurist bent on utilitarian outcomes in all cases regardless of the outcome that a broader conception of Justice might dictate. I do not support such jurists when I suggest that the Supreme Court could become more efficient through the use of constitutional sunsets. Efficiency should not guide the substance of the Court’s decisions. Mine is a process-based suggestion. The Supreme Court should ensure that its decision-making methodology is not wasteful and needlessly cumbersome, even if efficiency itself is not the basis for the Court’s decision. That kind of process-based efficiency will increase the judiciary’s esteem amongst the general public and, as argued in more detail below, allow the Court to hear more cases on genuinely new and pressing issues where it can ultimately create more Justice in the outcomes.

My normative defense of constitutional sunsets, which falls broadly under the rubric of efficiency, is divided into three subparts. First, I argue that constitutional sunsets will allow the Court to more readily reach constitutionally accurate decisions in close and controversial cases by reducing the information deficit facing the Justices in those matters. Second, I describe the externalities created by repetitive constitutional litigation that fails to produce meaningfully new and useful constitutional rules and argue that they can be reduced through the use of constitutional sunsets, which if wielded properly, will reduce that type of low-value repetitive litigation in the first place. The reduction in these external costs will benefit the Court itself, the litigants before it, and the political branches. Third, constitutional sunsets will allow the Court to more efficiently reach larger majorities and thereby issue more stable and lasting opinions. Finally, constitutional sunsets will allow the Court to reach decisions not just more acceptable to those within the judiciary but to society in general because those decisions will mark a significant advance in terms of the Rule of Law values of clarity, publicity, and stability.


A. OUTCOME ACCURACY

First, judicially enforced constitutional sunsets on government policies would increase the efficiency of the Supreme Court’s decision-making process by reducing pervasive informational deficits, allowing the Court to reach more constitutionally accurate outcomes in light of more relevant data.85

When Supreme Court Justices have bandied about the possible endpoint to controversial government policies, the problem they face is one of ex ante decision-making with little pertinent information. In determining the constitutionality of policies that test the limits of constitutionally protected rights but often have laudable goals, the Justices face the challenge of resolving a present controversy over that policy in a way that will have wide-ranging effects in the future, all with very few particulars about what those effects will likely be. The tradition of stare decisis only adds to the pressure; the Justices are expected to make a ruling in a particularly close and controversial case which will withstand the test of time, without the benefit of knowing how well a policy achieves its aims, however compelling.86

Sunsets on a government policy’s constitutionality can be a useful tool to help the Justices meet that especially tall order. They can increase the quality of deliberation about controversial policies while at the same time reducing societal uncertainty about whether a policy will be revisited after it has been in practice for a short while. A judicially enforced constitutional sunset should provide the Justices with the space needed for meaningful, well-informed deliberation about the constitutionality of a policy at a specific interval. Just as a legislative sunset can “tur[n] a proposal for a new agency or program into an experiment that can be revisited in a few years, after experience has accumulated,”87 enforced sunsets on the constitutionality of government policies can allow the government to test a potentially transformative policy in practice, and the Court can use the information gathered during

85 This is in contrast to substantially cutting the size of the state, as was the aim of many supporters of legislative sunsets. See supra Part II. 86 Stare decisis is traditionally viewed as a weaker commandment upon the Court in constitutional as opposed to statutory cases. Brian C. Kalt, Three Levels of Stare Decisis: Distinguishing Common-Law, Constitutional, and Statutory Cases, 8 TEX. REV. L. & POL. 277, 278–79 (2003). That said, I will argue below that simply weakening stare decisis in constitutional cases is a less effective and less efficient means of reducing the informational deficits that the Court faces. 87 Symposium, supra note 61, at 343 (speech of Professor Thomas W. Merrill).


the sunset period to decide if the policy’s gains outweigh its costs in constitutional terms.88

Of course, affixing a time for reconsideration only affords the Justices the opportunity for improved deliberation; there is no guarantee they will use the increased information and knowledge to inform their debates. “Superior information is a necessary condition for improved deliberation at the second stage of . . . decision-making, but it is not a sufficient condition.”89 The role of such sunsets lies in creating the environment for more thorough evaluation of that policy’s constitutional merits, whether or not future Justices take advantage.90 Constitutional sunsets give the Justices the opportunity to reconsider a suspect policy after intervening developments and information are presented to the Court, one they will hopefully seize.91

Another normative benefit lies in the way that judicially enforced sunsets on the constitutionality of a government policy promote judicial minimalism. Although such sunsets appear to invite the Justices to legislate from the bench, in fact they create an avenue for greater judicial deference to the other branches of government. The Supreme Court can use sunsets to take a temporarily passive stance on the policy at bar—allowing it to play out in practice while policy-makers have an opportunity to gather data on its benefits during the period of interim constitutionality—rather than taking a more activist position and striking down the policy outright.

There is value to this sort of jurisprudence. Alexander Bickel famously advocated the “passive virtues” of judicial restraint, counseling judges to avoid deciding constitutional questions when possible.92 Bickel highlighted Justice Brandeis’s affinity for “the mediating techniques of

88 “[W]hen initial decisions are likely to be wrong, staged decision procedures facilitate the correction of errors, and this is particularly likely to be the case in policy contexts dominated by uncertainty.” Gersen, supra note 64, at 267. 89 Finn, supra note 47, at 498. Finn suggests that we measure the “success” of a sunset by whether it promotes real deliberation in times of panic or great urgency, hopefully resulting in fewer illiberal policies. In his view, a legislative sunset is worthwhile because it gives the legislature the opportunity to revisit laws when it has more information and greater expertise, the so-called “deliberative benefits” of a sunset. Finn, supra note 47, at 445, 447. 90 Dan R. Price argued that legislative sunsets are effective where they permit the legislature to meaningfully re-evaluate policies so they could be tweaked and perfected if need be. Price, supra note 55, at 418. 91 This may also suggest that a sunset power is most useful in scenarios where information is particularly thin at the time a decision must be made, an issue I address later in this Paper. See infra Part VII. 92 ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 111–56 (1962).


‘not doing,’ [which] were ‘the most important thing we do.’”93 The sunsets on the constitutionality of a government policy I have described can be another arrow in the passive Justice’s quiver, through which premature and largely speculative rulings can be replaced by more reasoned decisions based on broader factual records.

I do not mean to suggest that legal process arguments such as Bickel’s are without their critics. Almost from their inception, these positions have been attacked as unnecessarily evasive techniques that overstate the problem of a Court seeking to maintain its legitimacy by limiting its affirmative constitutional pronouncements on the merits of adjudicated controversies.94 These critiques persist today, as theorists suggest that in some scenarios, such as where the value of gathering additional information is low and expedient settlement of a controversy is more important than accuracy, an active Supreme Court is more desirable than a passive one.95 My aim here is not to resolve that debate, but rather to suggest that in those scenarios where the passive virtues have their place—however those might be defined—judicially enforced sunsets on the constitutionality of a government policy can be an extremely useful doctrinal tool.

I also hope to avoid implying that constitutional sunsets are the only way to reduce the Court’s informational deficits. One other option is to rely on the fact that stare decisis, often the primary barrier to revisiting past decisions in light of new information the Court has amassed in the interim, is arguably already a lower hurdle in constitutional cases as a consequence of Congress’s inability to overcome jurisprudential mistakes in the area and the difficulty of amending the constitution.96 Perhaps the Court could create the unspoken impression that decisions on the constitutionality of a government policy are always provisional and thus readily modifiable after the policy has had time to play out in

93 Id. at 112. 94 See, e.g., Gerald Gunther, The Subtle Vices of the Passive Virtues, 64 COLUM. L. REV. 1 (1964). 95 “[U]nder certain conditions the active virtues, the embrace of clarifying conflict, should be preferred to the passive virtues, or the evasion of unnecessary conflict. The passive virtues . . . encourage institutions—especially courts—to avoid unnecessary constitutional conflicts. As against the passive virtues, however, decisive constitutional conflicts and precedent-setting showdowns should actually be encouraged where the value of waiting for more information is low, where similar issues will frequently recur in future generations (so that the value of settling questions now is high), and where legal uncertainty will impose high costs in the future.” Eric A. Posner & Adrian Vermeule, Constitutional Showdowns, 156 U. PA. L. REV. 991, 1041–42 (2008). 96 Brian C. Kalt, Three Levels of Stare Decisis: Distinguishing Common-Law, Constitutional, and Statutory Cases, 8 TEX. REV. L. & POL. 277, 278 (2003); see also William Eskridge, Jr., Overruling Statutory Precedents, 76 GEO. L.J. 1361, 1362 (1988).


practice. But that lower stare decisis barrier in constitutional cases has an ephemeral quality that undermines its effectiveness as a response to informational deficits. A generalized understanding that stare decisis is less binding in some unknown quantum of constitutional cases is a far cry from an overt, clear indication of the Court’s position on a particular policy. Under this alternative, court-watchers would have to decode the Court’s view of how strongly stare decisis applies in constitutional cases when a suspect policy proposal is at issue. The rational response would seem to be to assume that no constitutional pronouncement is likely to be permanent. Parties would thus seek to perpetually relitigate disagreeable precedents and avoid ordering their affairs on the basis of the Court’s earlier decisions. It would be far more efficient for the Court to reduce informational deficits by forthrightly announcing its intentions in specific constitutional cases where it seems sensible to delay a final pronouncement until more data on the constitutional costs and policy gains of a law are available. In addition to the advantages of clarity and predictability, this would undermine the authority of only constitutional decisions in which the Court specifically chose to include a sunset as part of its mandate. The timing of the Court’s revisiting would be spelled out in a way that the public can understand and upon which citizens can plan.

Other alternative methods to address informational deficits facing the Court are also less normatively attractive than the sunsets I propose in many scenarios. Simply avoiding a direct answer to constitutional questions presented by a controversial policy, either by selectively wielding the certiorari power or applying the sort of judicial minimalism Bickel advocated,97 to dodge the direct constitutional question until more information develops might seem a plausible alternative. There are two reasons to doubt the viability of these methods. First, the Court has failed to demonstrate this kind of discipline in the past. As I discuss in more detail below,98 despite the minimalist exhortations of Bickel and his followers, historically the Court has not demonstrated the fortitude to deny certiorari to new cases raising recently addressed issues. This is especially true as bench personality changes and new jurists seek to correct what they perceive as their predecessors missteps. Second, even if the dictates of judicial minimalism were consistently applied, the opacity of the doctrine dilutes its utility. Though court-watchers may come to hope that a minimalist pattern of behavior will stick in the future, they will have nothing approaching a real, concrete promise from the Court to that effect, and the Court will in turn not feel especially obligated to wait it out while a policy is applied in practice and data gathered on its real-world effects. Better for the Court to forthrightly

97 BICKEL, supra note 92, at 111–56. 98 See infra Part IV.B (discussing the history of the Supreme Court’s affirmative action jurisprudence).


announce its intentions keeping with the spirit of judicial minimalism in specific cases so that speculation can be reduced and planning by citizens encouraged.

A final sunset alternative that might reduce informational deficits on the Court are explicitly aspirational decisions such as Justice O’Connor’s Grutter opinion, which included her hope that collegiate admissions policies that consider race would no longer be necessary in twenty-five-years’ time.99 But these again will be less effective than explicit, hard sunsets. Such hopeful musings in no way bind the Court at large (or even their specific author) to a prudently patient schedule of decision-making that will allow the acquisition of needed data on the costs and effectiveness of a government policy. Such opinions are doubly-optimistic; in addition to hoping that a remedial government policy will no longer be needed at some unspecified future time, they seem to wish away the problem of determining when a sufficient threshold of policy gains has been achieved such that the Court can revisit and possibly revamp a prior constitutional ruling. Admittedly, sunsets are not necessarily any better at predicting when that threshold might be met. But at least a sunset’s author can be explicit in noting when she will reconsider the question, rather than leaving that timeframe open for the interpretation of future Justices who might irregularly and repeatedly revisit tired judicial battles.

B. REDUCING THE EXTERNALITIES OF REPETITIVE LITIGATION

Sunsets on constitutionality can reduce the external costs created by repeat litigation that does not produce meaningfully new and useful constitutional rules. Those externalities will be minimized because sunsets alter the incentives that promote that kind of wastefully repetitive litigation. The external costs of such litigation fall primarily on the Supreme Court itself, the litigants before it, and the other branches of government. Sunsets on the constitutionality of a government policy can provide needed relief to each of those groups. To highlight those potential effects, this section offers the example of affirmative action litigation in the years since Grutter to suggest how that controversy might have been resolved differently (and more efficiently) if Justice O’Connor’s opinion clearly and definitively established a sunset on the government policy at issue.

1. The Supreme Court Itself

For the Supreme Court, repetitive and nearly identical litigation on the constitutionality of a government policy creates the external cost of a jammed agenda. Such unproductive litigation creates a Supreme Court docket cluttered with cases that reexamine a few politically nuclear

99 Grutter, 539 U.S. 343.


issues each term to the exclusion of myriad other important controversies. This inefficiency in the Court’s decision-making process hamstrings its ability to trim incoherent strands from the law and thereby do more substantive Justice. If the Court can decide at most roughly 150 cases each year100—an aspiration it has been woefully unable to achieve recently101—each position on its docket is hugely valuable.102 Because it is busy hearing nearly identical cases over and over in a futile effort to reach substantively different results,103 the Court is unable to address a wide range of controversies in need of high court resolution.104

These externalities persist despite the Court’s seemingly complete control over its agenda through its certiorari powers.105 The Court could largely dictate its constitutional docket by simply refusing to consider similar cases again for an extended period. But it has shown historically that it is unable to do so in the most controversial and divisive matters.106

100 SAMUEL ESTREICHER & JOHN SEXTON, REDEFINING THE SUPREME COURT’S ROLE 3 (1986). 101 In fact, the Court has averaged less than 80 merits decisions since 2006. See ScotusBlog, Statistics, http://www.scotusblog.com/statistics/ (last visited May 7, 2014). 102 This is especially true as the rate of cases filed in the Supreme Court has increased exponentially over the past century. See ESTREICHER & SEXTON, supra note 100, at 13. 103 “Insanity is doing the same thing over and over again but expecting different results.” RITA MAE BROWN, SUDDEN DEATH 68 (1983). 104 Estreicher and Sexton contend, however, that the Court and society in general benefit when the Court leaves most controversies unaddressed so they may “percolate” towards a uniform resolution in the Circuit Courts. See ESTREICHER & SEXTON, supra note 100, at 41–70 (1986) (describing the “managerial theory” of the Supreme Court’s docket). Ultimately though, even they recommend procedures whereby the Court might issue provisional decisions in certain cases to avoid addressing identical issues repeatedly. Id. at 132 (“One means by which the Justices can tap the expertise of the outside world in time to improve the product of their deliberations would be to borrow a leaf from the federal administrative process and issue tentative opinions in the hope of eliciting written comments from affected organizations and academic experts.”); see also id. at 135 (recommending a similar practice for Circuit courts). 105 See Supreme Court Case Selections Act of 1988, 28 U.S.C. § 1257 (2012) (eliminating appeals as of right from state court decisions to the Supreme Court). 106 One frequent litigation strategy amongst activists that have developed litigation strategies to address particularly controversial issues raised in prior decisions, such as abortion or Miranda warnings, has been to seek review of remarkably similar test cases on a repeated basis in an effort to chip away at an “offensive” precedent until it becomes so toothless that the Court feels free to disregard or even outright overrule that precedent. See Gentithes, supra note 84, at 884–89 (discussing Barry Friedman, The Wages of Stealth Overruling (With Particular Attention to Miranda v. Arizona), 99 GEO. L.J. 1, 30 (2010)).


This is especially true as bench personality changes and the Justices seek to correct what they believe are the Court’s prior missteps. The temptation to repeatedly delve into the constitutionality of divisive government programs has too often proven impossible for the Court to resist. Without any formal limits on reconsideration, the Court has resigned itself to a needlessly cluttered docket and a disappointingly inefficient decision-making process.

Constitutional sunsets would place both a quantitative and temporal limit on reconsideration, dictating that the Court will only give a controversial issue a single rehearing at a specific time. Research on legislative sunsets explains that sunsets allow decision makers to set the agenda of their future colleagues while freeing their own calendars as laws with an expiration date are passed more easily and reauthorization decisions are delayed to the future.107 A judicially enforced sunset on the constitutionality of a government policy will set the agenda for Courts in the long term while opening up the docket in the near term during the sunset period. As I have described them, such sunsets can play a useful settlement role in controversial constitutional litigation by specifying a time for reconsideration of a policy far enough into the future that for at least some meaningful interval the Court can remove the issue from its to-do list.108 The period of interim constitutionality spelled out in the original decision will have all the stare decisis authority of any of the Court’s decisions, counseling strongly against additional reconsideration of the policy during that period.

Affirmative action litigation in the educational context provides a useful example of the efficiency gains that would accrue in the Court’s decision-making process if it utilized such sunsets. The Court’s initial

107 Gersen, supra note 64, at 279 (“[T]emporary legislation affects the power of agenda control—shifting some degree of control from a future legislature to the current-period majority.”). The “dead hand” of prior legislators can thus largely dictate the future legislative agenda via sunsets, possibly precluding that future legislature from taking up new business. “In a lot of ways we are not the masters of our own fates. Things come to us that something must be done about. Right now it is the Price-Anderson Act. It’s going to expire. There is a whole industry out there, and there are safe energy groups that don’t want to see it expire. So, that’s our agenda and it’s big.” Gersen, supra note 64, at 282 n. 131 (quoting Christine DeGregorio, Leadership Approaches in Congressional Committee Hearings, 45 W. POL. Q. 871, 978 (1992) (quoting an aide on the House Interior Committee)). 108 Some have argued that such sunset powers clarify the point in time where reconsideration of a given policy is possible, reducing the maintenance costs of that policy because it will not be subject to perpetual bruising political battles. “As long as the sunset is significantly far in the future, and therefore the time horizon sufficiently distant, affected interests should act as though temporary legislation is permanent, and lobby for repeal or continuance accordingly.” Gersen, supra note 64, at 265.


response to the issue came in its 1978 ruling in Regents of the University of California v. Bakke.109 In that case, the Court was asked to consider the constitutionality of an admissions policy at the Medical School of the University of California at Davis that explicitly reserved sixteen of the incoming class’s one-hundred slots for “economically and/or educationally disadvantaged” students, who were not compared with applicants in the regular admission pool.110 In a controlling opinion authored by Justice Powell, the Court held that although a university’s interest in diversity in its admissions program is compelling, the admissions program at bar did not meet strict scrutiny because it merely divided students into separate ethnic tracks, ensuring only ethnic variety rather than genuine, multi-faceted diversity.111 In dicta, Justice Powell added that an admissions program which considered race as only a “factor” or “plus” in admissions decisions was at least not facially unconstitutional and might not violate the Equal Protection Clause.112 American universities modeled their admissions policies around Justice Powell’s dicta for the next twenty-five years.113

In 2003, the Court again considered governmental affirmative action policies in an educational setting, this time looking at the University of Michigan Law School’s admissions policies in the Grutter case. The Court was asked to judge the constitutionality of a policy supporting “diversity” in an educational setting modeled upon Justice Powell’s opinion in Bakke.114 In a majority opinion authored by Justice O’Connor, the Court ultimately upheld the University’s policy, which used race only as a “plus” for certain applicants amongst many other factors designed to ensure individualistic consideration of all candidates along the same admissions criteria.115 But Justice O’Connor did not stop there; she added that in the twenty-five years since Bakke “the number of minority applicants with high grades and test scores has indeed increased. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”116

Regardless of one’s satisfaction with Grutter’s conclusion on the merits, time has undoubtedly shown that the decision has failed to settle one of the more divisive controversies in constitutional jurisprudence. Rather than closing the door to relitigation of the issue for at least some substantial period, it left open a festering political wound that has found

109 Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978). 110 Id. at 272–74. 111 Id. at 311–15. 112 Id. at 316–19. 113 Amar & Caminker, supra note 3, at 547–48 (quoting Grutter, 539 U.S. at 323). 114 Grutter, 539 U.S. at 328–29. 115 Id. at 334–35. 116 Id. at 343.


its way to the Court’s docket in the ten years hence. In the recently decided Fisher v. University of Texas at Austin case, the Court addressed the admissions program for the University of Texas at Austin, which utilized a “Personal Achievement Index” to assess a would-be student’s contribution to the university on a variety of metrics, including race.117 In its decision, the Court acknowledged that Bakke and Grutter (along with Grutter’s companion case, Gratz) “directly address the question of considering racial minority status as a positive or favorable factor in a university’s admissions process, with the goal of achieving the educational benefits of a more diverse student body.”118 The Court also took pains to note that it was not considering the correctness of Grutter’s conclusions, which the parties did not directly challenge.119 Nonetheless, the Court seemed to strain awkwardly to uphold Grutter’s approval of such holistic admissions policies. Such policies would only pass constitutional muster after surviving the “searching examination” of strict scrutiny,120 with no deference granted to the policy’s authors as to whether the implementation of that policy met strict scrutiny.121 After granting the case certiorari, having it fully briefed by the parties and innumerable amici, and hearing arguments some eight months earlier, the Court’s decision simply remanded the case to the Fifth Circuit to apply that more demanding version of strict scrutiny to the admissions program at issue.122 This outcome satisfied neither proponents nor

117 Fisher, 133 S. Ct. at 2411. This admissions program combined with the Texas State Legislature’s “Top Ten Percent Law,” which granted automatic admission to the University to students in the top 10% of their high school class, increasing racial diversity significantly at the University. Id. at 2416. 118 Id. at 2417. The Court noted that it would “take those cases as given.” Id. 119 Id. at 2421. 120 Id. at 2413. 121 Justices Scalia and Thomas wrote separately to highlight their disapproval of the University’s admissions policy and willingness to overrule Grutter in the future. See id. at 2422–33 (Scalia, J., concurring, and Thomas, J., concurring). 122 Id. at 2421. It is also worth noting that only four years after Grutter was decided, the Court at least tangentially discussed the issue again in Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007). In that case, the Court held that the use of a racial “tiebreaker” to admit students to a public school district’s most desirable institutions violated the Equal Protection Clause. Although the plurality opinion noted specifically that “[t]he present cases are not governed by Grutter,” id. at 725, the shadow that decision cast was clear. Justice Kennedy strained to emphasize that an interest in student body diversity could at least potentially be compelling enough to uphold the consideration of race in such high school admissions programs if the tailoring was sufficiently narrow. See id. at 793 (Kennedy, J., concurring in part and concurring in the judgment) (“Seattle’s plan, by contrast, relies upon a mechanical formula that has denied hundreds of students their preferred schools on the basis of three rigid criteria: placement of siblings, distance from schools, and race. If those students were considered for a whole range of their talents and


opponents of affirmative action, and each has vowed to fight on in future litigation.123

The unclear meaning of Justice O’Connor’s “expectation” that such affirmative action policies would no longer be necessary in twenty-five years prevented the Court from seizing the opportunity to at least place this troublesome issue on the sidelines for a substantial period.124 If the opinion had clearly stated that the University of Michigan’s admissions policy would pass constitutional muster only for twenty-five years, at which time (and no sooner) the Court would be willing to revisit the issue, the further expensive and time-consuming litigation on the topic in Fisher could have been averted. The Court could also have assessed more accurately the constitutionality of that and similar policies at a later date after more data—such as a showing that a meaningful increase in the number of minority applicants qualified for admission had accrued even without the aid of any race-based “plus” in the twenty-five years between the Bakke and Grutter decisions125—had been gathered by litigants on both sides. Instead, the Court seems resigned to a policy of muddling through Fisher and similar cases as they arise, deciding again and again whether to strike down the Grutter decision or continue to find

school needs with race as just one consideration, Grutter would have some application. That, though, is not the case.”). Though it is difficult to gauge whether the Parents Involved litigation would have proceeded even if Grutter included a more robust sunset on constitutionality of the type discussed in this Article, it can at least be said that the issue of whether diversity was a compelling interest that could in theory justify such admissions programs would not have been in play, streamlining the Parents Involved litigation. The Court would have made clear that such an interest remained compelling for at least twenty-one more years, whether or not the policies as implemented were tailored narrowly enough to that interest to pass constitutional muster. 123 See Adam Liptak, Unofficial Enforcer of Ruling on Race in College Admissions, N.Y. TIMES, Apr. 7, 2014, http://www.nytimes.com/2014/04/ 08/us/politics/edward-blum-one-man-organization-keeps-watchful-eye-on-college-race-admissions-policies-.html?hp (noting that the Fisher case has been reargued in the Fifth Circuit Court of Appeals, and that opponents of affirmative action are already planning to file several future cases); John Schwartz & Richard Perez-Pena, Lacking Definitive Ruling on Affirmative Action, Both Sides Claim Victory, N.Y. TIMES, June 24, 2013, http://www.nytimes.com/ 2013/06/25/us/lacking-definitive-ruling-on-affirmative-action-both-sides-claim-victory.html?ref=us. 124 The precise meaning of that phrase has been widely debated in the academic literature. See, e.g., Amar & Caminker, supra note 3; Katyal, supra note 3. My position does not concern what O’Connor’s phrase actually meant, but rather what it certainly did not mean—that the Court would not revisit the issue of affirmative action in an educational context for the substantial period of twenty-five years. 125 Grutter, 539 U.S. at 342.


narrow grounds on which to resolve individual controversies after drawn-out litigation that keeps this divisive policy matter at the forefront of our national consciousness.126

Critics of sunsets on a government policy’s constitutionality may contend that they are merely dissembling devices through which the Court can take on a policymaking role and avert a meaningful and final resolution of a difficult problem. Justice Powell’s Bakke opinion, for instance, contended “[t]he kind of variable sociological and political analysis necessary” to repeatedly evaluate a government policy’s achievement of a compelling aim without otherwise working significant constitutional injury “simply does not lie within the judicial competence—even if they otherwise were politically feasible and socially desirable.”127 But that argument ignores the reality of the Court’s constitutional jurisprudence in many areas, including the very topic that triggered Justice Powell’s argument.

The Court has historically shown its willingness to use its certiorari powers to repeatedly revisit the constitutionality of identical government programs and policies.128 It has done so without announcing a clear plan as to the frequency of such reevaluations, and without consistently considering new information that measures a government policy’s achievement of compelling aims or encroachment of other constitutionally protected rights. If the Court were instead to clearly announce (and then firmly abide by) a sunset on a government policy’s constitutionality, it would allow the Court to more efficiently administer

126 The Court has already heard further cases that touch on the topic, including whether Michigan’s constitutional amendment prohibiting racial preferences in University admissions violates the equal protection clause. See Schuette v. BAMN, 134 S. Ct. 1623 (2014). Justice Kennedy’s opinion in Schuette explicitly considered only whether Michigan’s constitutional amendment violated the political process doctrine as outlined in Washington v. Seattle School Dist. No. 1, 458 U.S. 457 (1982) and Hunter v. Erickson, 393 U.S. 385 (1969), and not the constitutionality or desirability of race-based admissions policies that the Court had recently addressed again in Fisher. Schuette, 134 S. Ct. at 1630. (“The question here concerns not the permissibility of race-conscious admissions policies under the Constitution but whether, and in what manner, voters in the States may choose to prohibit the consideration of racial preferences in governmental decisions.”). Perhaps, though, the case might not have drawn as much national attention, let alone such a vigorous dissent from Justice Sotomayor, if the constitutional status of such policies was clearer, and thus the case was not seen as a preliminary effort to undermine the ongoing viability of race-conscious admissions policies. See Editorial, Racial Equality Loses at the Court, N.Y. TIMES, Apr. 22, 2014, http://www.nytimes.com/2014/04/23/opinion/racial-equality-loses-at-the-court.html?action=click&contentColle ction=U.S.&module=RelatedCoverage&region=Marginalia&pgtype=article. 127 Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 297 (1978). 128 See supra note 109 and accompanying text.


Justice and increase the coherence of our law through more decisions addressing a wider panoply of topics. While I disagree that this type of analysis is beyond the Court’s purview, it seems clear that if the Court is going to engage in it anyway, the Justices should at least do so efficiently. The potential benefits to society are enormous.129

2. Litigants before the Supreme Court

Judicially enforced sunsets on constitutionality will make the process of preparing and arguing cases before the Supreme Court far more efficient. If the Justices definitively state that a contested policy passes constitutional strictures for a set period, after which the Court is open to reconsideration, the litigation tactics of parties on both sides of the issue will become much more straightforward. Such statements will discourage perpetual relitigation, allowing a norm’s supporters and detractors to prepare for a single litigation event at a specified time. The risk of perpetual reargument of controversial issues, which drains the parties’ resources and exerts a disturbingly disruptive influence on the politics of the country as a whole,130 will be meaningfully diminished.

Such sunset language will signal to would-be litigants that there is a specific time and place to fight additional battles over the propriety of a policy.131 Litigants would devote their resources to gathering additional information about the controversial policy to present to the Court.132 In some cases, the new information generated during the interval before that future litigation battle may be so skewed in favor of one position as to make the outcome a practically foregone conclusion, or the issue may be resolved by the circuit courts in a sufficiently satisfactory way that the need for another iteration of high court (and high-cost) litigation is obviated.133

Some frequent litigants, such as the Department of Justice or dedicated advocacy groups like the ACLU, have the financial wherewithal to continue litigating an issue before the Supreme Court ad

129 Followers of the legal process school will see the value in this type of institutional settlement of complex legal controversies with both accuracy and finality. See HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW 4–6 (William N. Eskridge, Jr. & Philip P. Frickey, eds., 2001). 130 See Gentithes, supra note 36, at 813. 131 Katyal, supra note 3, at 1247. 132 It should again be emphasized that the constitutional sunsets proposed here are not aimed to automatically terminate suspect policies. The legislature should thus be discouraged from reflexively discontinuing a policy simply because is has reached the culmination of a judicially enforced constitutional sunset period. 133 See ESTREICHER & SEXTON, supra note 100, at 41–70 (1986) (arguing that many controversies the Supreme Court might be tempted to address can be resolved by increased “percolation” of the issue in the Circuit courts).


nauseam in hopes of effecting a desired change in the law. But my argument is not a suggestion that such groups should or would litigate less in total if constitutional sunsets were commonplace in the Court’s jurisprudence. Instead, such organizations would benefit from substituting their resources to different controversies also worthy of high court debate. These entities, much like the Court itself, would be able to emphasize issues other than the same tired controversies that have previously been argued to a near-draw. They can do more to advance Justice writ large by bringing worthy causes and new arguments to the fore rather than reminding us all that a few divisive ones remain unresolved because the effectiveness of government programs is murky. This shift would also preserve frequent litigants’ political capital, another finite resource at their disposal, for new issues in need of resolution. Such organizations can more efficiently maintain the Court’s and the nation’s attention by addressing a broader array of alleged legal improprieties that fall within their organizational aegis.

Turning again to the example of post-Grutter jurisprudence, both supporters and opponents of educational affirmative action have found themselves repeatedly funding and strategizing for litigation regarding practically identical government programs only a few years after a supposedly authoritative decision was rendered in 2003. The Fisher case is a glaring example of the temporal and monetary costs imposed upon litigants on both sides of the issue, all for a decision that ultimately did little if anything to decide the long-term constitutionality of admissions programs that contain a racial “plus” factor.134 Both supporters and detractors have already committed to additional litigation in the Fisher case itself as well as other educational affirmative action cases in the Supreme Court pipeline.135 These parties are perhaps not to be blamed; the Court’s Grutter decision, complete with Justice O’Connor’s postscript, left open the possibility that the Court’s position was in fact not a resolution of the constitutional issues raised, but without elucidating what might cause the Court to change its view and, more importantly, when. An open and honest statement by the Court that it was granting provisional constitutional status to such admissions programs modeled on Bakke’s support for “diversity” in an educational setting, a status that would only be revisited at a specified time far in the future and in light of additional evidence gathered on the constitutional repercussions of such programs, would have served the litigants far better than a decision which invited ongoing courtroom battles that have bruised both sides and demanded resources better allocated elsewhere.

134 Fisher, 133 S. Ct. at 2411. 135 See Liptak, supra note 123; Schwartz & Perez-Pena, supra note 123.


3. The Political Branches of Government

For the legislative and executive branches, judicially enforced sunsets on the constitutionality of government policies will have valuable trickle-down effects. These will largely be realized in terms of the agenda of those elected officials, as policymakers need not react to new Supreme Court rulings on their programs’ constitutionality.

While legislative sunsets often tie the hands of future lawmakers by allowing the dead hand of past politicians to control the present agenda,136 judicial sunsets on constitutionality should have the opposite effect. Knowing that a particular policy has been granted provisional constitutionality that may be confirmed permanently at a fixed point in the future, legislators will be relieved of the burden of readdressing the issue in a new law or tweaking the existing (and still functioning) policy. The legislature will thus be able to take up new business while a divisive policy debate is placed on hold throughout the sunset period. Given the general public distaste with Congress’s perceived inability to take any action whatsoever,137 such a greasing of the legislative wheels would be a welcome change to the status quo.

While a government program or policy granted provisional constitutional status will not always involve an administrative agency, when it does, a sunset decision will provide a clear directive to the agency. The agency must devise rules for the effective implementation of the program or policy, as well as mechanisms to measure and clearly demonstrate the policy’s effectiveness in a future “reauthorization” battle before the Court. The agency will not need to constantly adapt to shifting Court edicts on the same issue, nor will it be tempted to avoid fully implementing a program or policy that could fail in immediately pending bouts of relitigation.

Although decisions regarding educational affirmative action policies have not had such direct effects on lawmakers, their repercussions for public school administrators are demonstrative. Crafting admissions policies to meet the delicate outline of Justice Powell’s Bakke decision was difficult enough. Justice O’Connor’s opinion in Grutter, although generally supportive, added nuances to those policies. But while such intricacies may have been acceptable, administrators’ greatest challenge is determining whether to craft such affirmative action policies at all in light of the Court’s apparent willingness to readdress the issue and possibly change tack completely. Admittedly, such reliance interests

136 Gersen, supra note 64, at 279. 137 See, e.g., No Labels Poll: 94 Percent of Americans Say Congressional Inaction Harming Economy, PR NEWSWIRE, Dec. 1, 2011, available at http://www.prnewswire.com/news-releases-test/no-labels-poll-94-percent-of-americans-say-congressional-inaction-harming-economy-134829028.html.


alone should not dictate the course of constitutional litigation.138 Nonetheless, what this series of cases demonstrates is how the Court’s indecision can affect policymakers’ agendas, forcing them to continue adjusting and debating a particular policy rather than moving on to other issues that might be more at the core of their (in this case educational) mission. If the Court announced a genuine sunset on the constitutionality of such policies, school administrators could have focused their energies elsewhere while passively monitoring the effects of their admissions policies with an eye towards future adjustment at the sunset’s relatively distant expiration.

C. COALITION BUILDING

Judicially enforced sunsets on the constitutionality of a government policy may also encourage needed deal making amongst the Justices, encouraging them to form larger and more stable majorities. Sunsets can be used to capture reluctant votes in close cases through the promise of a likely return to the issue for more permanent resolution at a specified time. Rather than remaining publicly fractured through innumerable iterations of high court litigation, the Justices can efficiently develop a united front regarding a particular policy that will increase stability in the Court’s rulings.

The literature discussing legislative sunsets demonstrates how such tools can be used to build broader coalitions in fraught policy environments. Statutory sunset provisions can be a “spoonful of sugar” that allows a law’s opponents to swallow a particularly controversial, but potentially widely beneficial, policy;139 “[i]ndeed, some scholars have claimed that ‘sunset provisions . . . usually reflect either a slim majority or a controversial measure, or a solution to a problem that legislators are not sure will work.’”140 Such legislation, because of its temporary nature, is often easier to enact because those in the minority feel less pressure to intensively review and deliberate over a matter that is sure to arise again.141 For this reason, sunsets are typically attached to modern tax

138 Professors Amar and Caminker have argued that such reliance interests generally should not play a role in the Court’s constitutional decisions. Amar & Caminker, supra note 3, at 548 (“[R]eliance interests and the dislocation costs of a reversal in judicial direction can be asserted in virtually any important case; the Court . . . usually decides cases based on these considerations only when they are unusually substantial.”). 139 Mooney, supra note 50. 140 Finn, supra note 47, at 455 (quoting John C. Roberts & Erwin Chemerinsky, Entrenchment of Ordinary Legislation: A Reply to Professors Posner and Vermeule, 91 CALIF. L. REV. 1773, 1808 (2003)). Some are more critical of this process, specifically regarding controversial tax legislation during the George W. Bush administration. See Mooney, supra note 50. 141 Jacob Gersen, Temporary Legislation, 74 U. CHI. L. REV. 247, 252 (2007).


legislation that may otherwise have faced vociferous minority opposition.142

Similarly, judicial sunsets on the constitutionality of a suspect program or policy may allow the Justices to reach agreement when they are closely divided or unsure of a government program’s merits. The Justices may be able to both resolve constitutional questions more frequently and form larger majority coalitions in tough cases regarding thorny issues.

Such an increase in coalition building on the Court is attractive. At the start of his term, Chief Justice John Roberts emphasized the value of strong coalitions in the Court’s decision.143 For Chief Justice Roberts, if the Court issues fractured decisions with multiple separate opinions it will signal “a steady wasting away of the notion of the rule of law, a personalization of it.”144 Ultimately, the authority of any pronouncement of the Court would be called into question, as any line of decisions might be subject to rapid revision simply on the basis of a change in bench personality. Clarity in the Court’s shared understanding of the Constitution, a vital component of the Rule of Law,145 is also at risk when the Court fails to build consensus in its rulings. If unanimous or even large majority opinions are impossible, the state of the foundational norms of our country becomes impenetrable to laypersons and law professors alike.

One might object that sunsets could thereby lead to more majority opinions that approve of constitutionally distasteful policies, even though those policies would have run afoul of the Constitution on a

142 “When associated with tax legislation, sunsets are created for two main purposes. One, to create opportunities for legislators to extract rents, as illustrated by the extenders; and two, as a consequence of the Byrd rule, to prevent tax cuts from becoming permanent.” Viswanathan, supra note 52, at 683. The lack of permanency makes such legislation far more palatable to the minority that may otherwise have blocked the passage of such legislation. 143

In Roberts’s view, the most successful chief justices help their colleagues speak with one voice. Unanimous, or nearly unanimous, decisions are hard to overturn and contribute to the stability of the law and the continuity of the Court; by contrast, closely divided, 5–4 decisions make it harder for the public to respect the Court as an impartial institution that transcends partisan politics.

Jeffery Rosen, Roberts’s Rules, THE ATLANTIC, Jan./Feb. 2007, http://www.theatlantic.com/magazine/archive/2007/01/robertss-rules/305559/. 144 Id. (quoting John Roberts, C.J.). Roberts added “I think it’s bad, long-term, if people identify the rule of law with how individual justices vote.” Id. 145 See, e.g., LON FULLER, THE MORALITY OF LAW 51 (1964).


permanent basis. This kind of compromise, in the context of individual rights, might be too deferential to the government.146 But the odds are just as high that the use of sunsets on constitutionality will make it easier for worthwhile yet controversial government programs to pass constitutional muster, at least on an interim basis, and not be tossed asunder without any experimentation. Just as labeling controversial legislation as “temporary” increases its likelihood of passage because it becomes easier for the opposing minority to accept legislation with a built-in self-destruct mechanism,147 wary judges might be convinced to approve constitutionally suspect policy that will certainly be revisited at a specific point in time. This may even favor individual rights. In some contexts a radical program that promotes the interests of individuals, particularly minorities, may have beneficial effects in the short term that a constitutional sunset will allow them to realize.

D. SUNSETS AND THE RULE OF LAW

In addition, sunsets on constitutionality will promote several Rule of Law virtues that allow private actors across the nation to comply with the Constitution’s requirements more efficiently. If the Court can clearly announce that a particular government policy will remain constitutional for at least an extended sunset period, citizens will not need to be experts at parsing divided opinions in order to understand the current state of constitutional law. This added clarity in our nation’s foundational norms will in turn enhance their public accessibility, and will also render the law of the Constitution more predictable and thus a more useful edifice upon which citizens can order their private affairs.

146

[J]udicial sunsets give the Court a compromise option that enables them to experiment with broad deference to the government. A judicial sunset therefore can be antithetical to individual rights, because the Court will be tempted to defer to the Executive’s broad claims and pay lip service to the notion of watching the judicial experiment unfold in the years to follow.

Katyal, supra note 3, at 1248. 147 See Gersen, supra note 64, at 252 (“[T]emporary legislation may be easier to enact than permanent legislation, or may produce less-intensive review and deliberation during the renewal debates, or both. If so, temporary legislation could theoretically be more likely to produce ongoing legislation that contradicts the public interest.”); Symposium, supra note 61, at 360 (speech of Judge Frank H. Easterbrook) (“Sunset laws may get rid of old laws and promote the cause of classical liberalism, but they also may make it easier to enact new laws and promote the cause of interest groups. Which one of these effects predominates?”).


First, there is significant Rule of Law value to a legal regime that is clear. Such clarity is needed to guide the actions of citizens, provide fair warning if life, liberty, and property are at stake, and protect expectations of how others, including the state, will behave.148 Sunsets will allow the Court to specify a period during which a policy will remain constitutional while delineating precisely how and when the Court is willing to revisit the issue, rather than leaving it open to conjecture when the Court might again see fit to issue new edicts on the topic that unsettle vast swathes of the legal regime.

Clear, intelligible Supreme Court opinions in turn open constitutional law for public consumption. There are gains to be reaped from ensuring that the law of the land is openly promulgated to the masses, even if the majority of the citizenry will react indifferently.149 Decisions announcing a constitutional sunset bring the status of the law into the sunshine where all can at least potentially view it. This is a vast improvement from leaving the public on edge as they try to anticipate the whim of a few key Justices who might revisit an opinion at any time. The reduced opacity in the Court’s jurisprudence creates a virtuous cycle whereby its relationship to the public at large is more responsive and far more useful in citizens’ daily lives.

Finally, sunsets that clarify the status of certain constitutional decisions will add stability to the Court’s jurisprudence, again serving important Rule of Law goals. Actors seeking to order their affairs in compliance with government policies and programs can rest assured that those policies and programs will remain stable, thereby significantly lowering their transaction costs.150 Such a stable legal regime is more predictable, generating viable expectations amongst citizens as to how a policy’s constitutionality will be viewed for at least a significant period of time.151 That predictability allows those subject to its constraints to utilize their talents within the consistent bounds of the law.

Critics might suggest that the Rule of Law gains derived from constitutional sunsets would be attenuated by private citizens’ hesitancy to act in light of uncertain high court jurisprudence during a period of

148 F. A. HAYEK, THE ROAD TO SERFDOM 78 (1944); FULLER, supra note 145, at 63–65. 149 See, e.g., FULLER, supra note 145, at 51 (“Even if only one man in a hundred takes the pains to inform himself concerning, say, the laws applicable to the practice of his calling, this is enough to justify the trouble taken to make the laws generally available.”). 150 That kind of relative constancy in legal norms is also a point of emphasis for Rule of Law scholars such as Fuller. See id. at 49–53. 151 F. A. HAYEK, LAW, LEGISLATION AND LIBERTY 102 (1982) (“The task of rules of just conduct can thus only be to tell people which expectation they can count on and which not.”); F. A. HAYEK, THE CONSTITUTION OF LIBERTY 23 (1960).


interim constitutionality. These costs may include forgone transactions and postponed rearrangements while private actors are awaiting “final” decisions from the Court on a particular government policy that affects the range of choices and decisions facing such actors. But the same costs are generated in even greater quantity when the Court issues a closely divided decision regarding a controversial government policy that inspires efforts to reverse or significantly temper the announced ruling. In that relatively common scenario, private actors are in an even more tenuous position as the uncertainty clouding the Court’s decision might unravel it at any moment, rather than at a fixed point in the future.

V. POTENTIAL DRAWBACKS

There are potential drawbacks to the type of judicially enforced sunsets on the constitutionality of a government policy considered by this Article. This Part considers several of those possible negative ramifications in turn in an effort to defend such sunsets against would-be critics. After evaluation, this Article ultimately concludes that such sunsets would nonetheless exert an overwhelmingly positive influence on the Supreme Court’s constitutional jurisprudence.

A. EFFICIENCY AS A DECISION-MAKING RUBRIC

As noted earlier in the Article, using the term efficiency at all in reference to constitutional law is a dangerous enterprise. Critics will surely suggest that Supreme Court decisions should not be influenced by economic convenience. The Court’s role in our society is to act as a paradoxically counter-majoritarian entity that defends the rights of the less powerful and preserves the freedoms of us all by protecting the structure of our federal government from overreach.152 Efficiency, some will certainly argue, has no place in that vital judicial effort.

Judicial sunsets are not necessarily in tension with that view of the Court’s role. This Article’s recommendations are process based, not outcome determinative. It takes no position on the law and economics movement. Instead, it merely recommends that the Supreme Court’s decision-making process could be more efficient, and that such process-streamlining will give the Court the opportunity to make substantive rulings based upon whatever conception of Justice it chooses. Attacks on efficiency as a rubric guiding outcomes are tangential to my project, which seeks merely to provide an additional method to ensure that constitutional decisions are made as efficiently as possible.

152 See generally BICKEL, supra note 92.


B. RENT EXTRACTION

One concern arises from the analogy to legislative sunsets, which in some cases have allowed policymakers to repeatedly extract rents from interested stakeholders as particular laws approach their sunset dates. “Specifically, the continuous threat of expiration allows Congress to extract more rents from interest groups through the use of sunset provisions that require those groups repeatedly to return to the congressional floor to achieve their goals.”153 For instance, in the context of the estate tax and its potential repeal during the early 2000s, scholars have suggested that legislators intentionally created a never-ending lobbying war between proponents and opponents of repeal. This lobbying war allowed the legislators themselves to extract maximum rents in the form of campaign contributions while the law became no clearer and no more favorable for either group.154 Thus, the continuing threat of legislative expiration, at least theoretically, permits legislators to twist the arms of unwilling donors while corrupting the political process.

This concern is not genuinely applicable to judicially enforced sunsets on constitutionality. There is no equivalent for this type of rent extraction in the context of constitutional litigation. Certainly, due to sunsets, there is always the chance for interested stakeholders in repeated constitutional litigation to engage in outright bribery to gain influence. But that temptation is no different than it would have been without judicial sunsets in place, a scenario under which the Court was already willing to hear virtually identical cases on particularly difficult constitutional questions. Furthermore, because the Justices receive lifetime appointments, there is no temptation to use the issue of a given policy’s constitutionality that might affect a few high-stakes players to

153 Kysar, supra note 44, at 1013–14. 154 See Edward J. McCaffery & Linda R. Cohen, Shakedown at Gucci Gulch: The New Logic of Collective Action, 84 N.C. L. REV. 1159, 1164–65 (2006) (“We believe that the estate tax, and the recent legislation to repeal—or not—this tax, is a perfect case study. Here is a tax falling on a very few people, but at high stakes. The tax is largely avoided through private planning: transactions that generate large financial returns to a small, highly remunerated group of ‘players.’ Thus there are two Mancur Olson groups, counterpoised on both sides of the issue. Repeal of the estate or so-called death tax has an important and plausible asymmetry to it: if the tax ever dies, it is unlikely to be revived. Thus, private parties harmed by the presence of the tax—the putative taxpayers—would rationally pay to kill the tax. On the other side, parties benefited by the existence of the tax—financiers such as insurance companies, lawyers, accountants, and sophisticated nonprofits—would rationally pay to keep the tax. Congress has perfect shakedown territory. The ex ante rent-extraction phenomenon suggests that Congress will milk this lucrative cow for all it is worth (to add another metaphor to the fray), voting over and over and coming up short—just short—of permanent repeal. And so they have. In spades.”).


generate a war chest of campaign money for the next election cycle. There will be strident views on both sides of the issue, and Justices with lifetime appointments should be able to address those positions on their logical and rational merits—at least more so than a legislator who is facing a hotly contested reelection battle.155

C. THE DEAD HAND OF FORMER JUSTICES

Another potential drawback for judicially enforced sunsets is the power they provide present-day Justices to exert dead-hand control over future Courts. Again, this concern finds its roots in the scholarship on legislative sunsets. Renewing temporary spending takes up agenda space and fills the legislative calendar with old business, perhaps leaving new and pressing matters unaddressed.156 Legislative sunsets can thus have a deleterious effect on the adoption of new legislation. In the case of judicially enforced sunsets on constitutionality, such decisions could arguably prohibit the Court from considering new constitutional controversies, while forcing reconsideration of issues that past Justices decided only provisionally. Those past Justices would thus be able to dictate the docket in future terms without actually resolving close constitutional controversies themselves.

The dead-hand concern does not significantly undermine the value of judicially enforced sunsets on constitutionality. Such sunsets should actually limit the frequency with which the Court addresses practically identical issues. As discussed earlier, the Court has not demonstrated a willingness to deny certiorari to cases calling into question recently

155 There is an argument to be made that, just as tax breaks have come to be seen as a permanent facet of American life, one which is a political third-rail for any legislator seeking to reduce government outlays or increase revenues, see Viswanathan, supra note 52, at 670 (“because American taxpayers consider these tax cuts to be entitlements, Congress does not dare to question them”), a constitutional right will never be overturned at a sunset date because such rights have become too popular. But as noted above, the sort of sunsets on government policies that I have described do not necessarily touch upon or establish particular constitutional rights. Instead, they set the limits of those rights and prescribe how much encroachment upon them can be constitutionally permitted. In any event, to the extent a constitutional right is at issue in such cases, the pressure exerted on a Supreme Court Justice is not the same as the pressure that a lobbyist or interest group can bring to bear on a legislator. The Justices deciding the case need not be concerned with potentially offending voters or interest groups in a subsequent election cycle, but only with answering the constitutional quandary at bar completely and accurately. As I’ve argued above at length, judicially enforced sunsets on constitutionality offer the Justices the opportunity to increase that decisional accuracy and to achieve ultimate resolution of the constitutional question in the most efficient fashion possible for all the entities affected. 156 See Gersen, supra note 64, at 279.


decided but closely divided opinions.157 Sunsets on constitutionality can actually limit the number of rehearings on an issue by delineating a period of interim, unchallengeable validity for a government policy. These sunsets may necessitate reopening a difficult constitutional quandary, but only once,158 and only at a reasonably distant point in the future.159

Even if the dead-hand critique of judicially enforced sunsets on the constitutionality of a government program accurately captured the effect of such decisions on future Courts’ dockets, there is a countervailing and arguably more important dead-hand concern that arises in the absence of such sunsets. Any constitutional decision that proves misguided also exerts dead-hand control on future Justices through the force of stare decisis. The potential that a present decision will create such lasting, undesirable ripples in society may have troubled Justices that have hinted at the need for some time limits on certain constitutional decisions. The stare decisis influence of a misguided ruling is the more important dead hand to avert. The type of sunset discussed in this Article can alleviate some of that more disconcerting dead-hand pressure.

D. INSTABILITY AND THE RULE OF LAW

Another potential objection to judicially enforced sunsets on the constitutionality of government policies might be made by Rule of Law theorists. Such potential critics might fear the legal instability engendered if the foundation for our legal regime can shift in this way. One of the primary reasons a society submits to a regime of law, after all, is to settle controversies with sufficient authority so that all parties will respect and submit to those settlements.160 It can be argued that in some (if not many) legal controversies, settled law of any sort is more desirable than uncertainty, even if the law could be improved.

157 See supra Part V. 158 Of course, the Court could decide, once the sunset date has arrived, to assign a further sunset date, as the program remains effective but may no longer be required after an additional number of years on the books. 159 Critics of the dead-hand control of past Justices should also note that judicially enforced sunsets on constitutionality might actually apply conservative pressure to the Court’s efforts to expand the scope and number of constitutional rights. Temporary spending legislation, to the extent it dictates the agenda of future legislatures, may actually crowd out the possible consideration of new spending laws, thereby providing some protection to the public fisc. George K. Yin, Temporary-Effect Legislation, Political Accountability, and Fiscal Restraint, 84 N.Y.U. L. REV. 174, 180 (2009). In the context of constitutional jurisprudence, if past Justices can force their future colleagues to reconsider the rights at issue in earlier controversies, those future Justices may be prohibited from creating ever more expansive understandings of the rights the Constitution protects. 160 See HART, JR. & SACKS, supra note 129, at 4–6.


This line of reasoning has led theorists to launch strong critiques of legislative sunsets. For example, Abner Mikva has argued that “[e]ven though the compromises effected many years ago may no longer be harmonious with current legal thought, general sunsetting would almost certainly encourage legal instability and reopen political wounds perhaps better left healed.”161 This criticism is especially pointed regarding temporary or sunsetted tax legislation.162 The same can be said for sunsets on laws pertaining to property rights.163

For judicially enforced sunsets on the constitutionality of government policies, the question is whether such sunsets actually decrease stability in constitutional jurisprudence. As discussed above, it seems likely that the use of judicial sunsets will lead to less, not more, revisitation of difficult constitutional questions. This alone largely undermines the instability critique. There may be a remaining concern that the Justices could use sunsets to avoid ruling in difficult cases, knowing that the long-term uncertainty surrounding a government policy may lead to its eventual doom irrespective of its inherent wisdom.164 This lack of certainty could in the long run diminish popular respect for, and submission to, the rule of law.165 But while certainty is a laudable

161 Abner J. Mikva, The Shifting Sands of Legal Topography, 96 HARV. L. REV. 534, 538 (1982) (reviewing GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES (1982)). 162 See Beth Shapiro Kaufman, The Federal Estate and Gift Tax: A Case Study in Uncertainty, 64 NAT’L TAX J. 943, 948 (2011). (“Frequent changes in the law, which require new planning techniques and documents, encourage disrespect for the law, increase taxpayer costs, and create complexity; they thus can be used as arguments to encourage repeal of these taxes.” ). 163 Kysar, supra note 44, at 1602 (“Madison . . . wrote that, as a sunset date nears, ‘all the rights depending on positive laws, that is, most of the rights of property…become absolutely defunct, and the most violent struggles ensue between the parties interested in reviving, and those interested in reforming the antecedent state of property.’”). 164 The country has seen this kind of instability perpetuated in the context of sunsetted tax provisions. For instance, some have argued that sunset provisions in tax credits for the renewable energy sector are so short that they have undermined the long term planning and investment necessary to develop a renewable energy infrastructure. See Erin Dewey, Note, Sundown and You Better Take Care: Why Sunset Provisions Harm the Renewable Energy Industry and Violate Tax Principles, 52 B.C. L. REV. 1105, 1107–15 (2011) (arguing that the three year sunsets of the Production Tax Credit, which is a shorter time-frame than the installation period to create a functional wind farm domestically or offshore, leads to a boom and bust cycle of investment around each sunset at best and may prohibit investment altogether at worst). This is contrasted by the sustained investment seen in low-income housing once the Low Income Housing Tax Credit became permanent, rather than frequently sunsetted. Id. at 1138. 165 See Katyal, supra note 3, at 1249 (“If the Court were to admit doubt about its ruling, it might diminish respect for the rule of law.”).


goal of a legal regime, it is not the only aim. On questions of the proper order of our society and the meaning of our most fundamental legal norms, a conservative pace in declaring the meaning of the law of the land may be appropriate. Accuracy, not expediency, is the watchword. “While a judicial sunset of a bad decision is not as great as getting the decision right the first time around, it is a good second-best one.”166

VI. APPROPRIATE APPLICATIONS FOR JUDICIAL SUNSETS

Having argued the case for the use of judicially enforced sunsets on the constitutionality of government policies, this Part now considers the most likely scenarios for the application of such sunsets. By highlighting the greatest strengths of judicially enforced sunsets, this Part suggests that those sunsets will have the most utility in a few specific contexts.

Some legal theorists have considered whether legislative sunsets may be best suited for a limited number of policymaking spheres. For instance, Jacob Gersen has claimed that legislative sunsets are uniquely equipped “to fill gaps in existing law, as a symmetric response to policy problems that are themselves perceived to be temporary, or as experimental or information-producing measures.”167 Thus, “sunsets are an especially useful tool when legislatures must act in conditions where information is limited or uncertain, but the perceived need for action is high.”168 That reasoning has led to the suggestion that legislators drafting anti-terrorism laws in the immediate aftermath of the 9/11 attacks should have employed sunsets.169

In constitutional jurisprudence, the pressure to take some action by issuing a ruling on a highly controversial topic is almost always strong, and thus the proper application of sunsets on constitutionality may at first appear unclear. But in some cases a sunset will be especially

166 Id. at 1256. 167 Gersen, supra note 64, at 273. 168 Finn, supra note 47, at 448. 169 As Professor Bruce Ackerman wrote in an L.A. Times editorial eleven days after the attacks:

[i]t is one thing to pass emergency legislation; quite another to make it a permanent part of our law. Any congressional enactment [at this time] should come with a sunset provision, requiring the law to lapse after two years unless it is reenacted. During the interim, Congress should create a bipartisan commission to consider the fundamental questions at stake. Then, we can consider more permanent legislation after the initial panic has subsided.

Bruce Ackerman, Editorial, Sunset Can Put a Halt to Twilight of Liberty, L.A. TIMES, Sept. 20, 2001, http://articles.latimes.com/print/2001/sep/20/local/me-47757.


helpful. As noted earlier, government programs that are at least partially designed to remedy a past wrong are intuitively good candidates for the application of a judicially enforced sunset.170 Sunsets will allow the Court to readdress the government policy’s achievement of its compelling aims in light of any ancillary constitutional damage done in the interim.

Sunsets may also be appropriate when the Court considers a policy response to a new emergency or crisis. Neal Katyal has claimed that national security issues in particular could be effectively addressed with legal sunsets.171 The Court could apply sunsets to government policies addressing rapidly emerging issues of national security where information about the effects of the policy, both in its potential infringement upon other constitutional safeguards and its effectiveness at achieving the government’s stated aim, is quite limited. Provisional approval of such a policy while more data is obtained prior to an ultimate ruling on the policy’s constitutionality would address that informational deficit. It may also allow the government to implement policies with a built-in expiration date, as might be appropriate to respond to what may be only short-term national security issues.172

The Court might also strongly favor sunsets to government policies designed to respond to emergencies outside of the national security realm, such as sudden droughts or reactions to a public safety crisis. This will allow the Court to more fully consider the repercussions of a policy put in place by lawmakers who were seeking to react quickly to resolve an unpredictable problem. Those are scenarios in which a legislative response, despite being ill considered, would be likely to build a supporting coalition quickly and receive passage without full consideration by lawmakers.173 This is not to argue that the judiciary ought to begin shaping the products of the lawmaking process. But the Court can serve as a proper check on potential legislative overreach

170 Amar & Caminker, supra note 3, at 543. 171 Katyal, supra note 3, at 1237. 172 As Jacob Gersen has pointed out, policymakers face a variety of cognitive biases in assessing future risks and responding to them. Such risks might be especially prevalent in the national security arena. See Gersen, supra note 64, at 268 n.76 (citing BEHAVIORAL LAW AND ECONOMICS (Cass R. Sunstein ed., Cambridge 2000); Christine Jolles et al., A Behavioral Approach to Law and Economics, 50 STAN. L. REV. 1471, 1473 (1998); Dan M. Kahan et al., Fear of Democracy: A Cultural Evaluation of Sunstein on Risk, 119 HARV. L. REV. 1071 (2006) (reviewing CASS R. SUNSTEIN, LAWS OF FEAR: BEYOND THE PRECAUTIONARY PRINCIPLE (2005)). 173 See Kysar, supra note 44, at 1066 (arguing that temporary legislation will “provide a check on a legislature in dealing with hurriedly drafted and enacted legislation [responded to crises], and to return automatically the statutory scheme to the status quo once the emergency has dissipated.”).


without stunting quick legislative responses to emergency situations by taking the kind of wait-and-see approach to constitutionality that a judicially enforced sunset would allow.174

Finally, judicially enforced sunsets on constitutionality might be appropriate when dealing with an explicitly experimental piece of legislation. Some theorists have argued strongly for sunsets on legislation with an experimental undertone.175 Judicially enforced sunsets on such legislation are sensible for the same reason; the government’s policy experiment may be a worthwhile one, but it comes with a high risk-reward quotient. The Court may be best served by allowing the experiment to proceed for a specific time frame before re-evaluating the policy’s constitutionality when more information about its effects in achieving its aim and infringing on constitutionality-protected rights are known.176

CONCLUSION

The Supreme Court’s constitutional jurisprudence has been erected at an extremely gradual pace through a series of carefully measured decisions elucidating the bounds of the nation’s founding document. A spirit of cautious empiricism undergirds the American legal project177

174 This has led some legal theorists to support sunsets written directly into legislative proposals designed to respond to rapidly emerging crises. See Gersen, supra note 64, at 248 (“Because temporary legislation reduces background uncertainty and mitigates certain forms of cognitive bias, it is likely to provide far more advantages than drawbacks as a legislative response to newly recognized risks.”). For the same reason, a judicially-enforced sunset on constitutionality is particularly useful when applied to the government's response to a newly-emerging risk that legislators presume must be responded to in some fashion, but those legislators are acting with insufficient information to know with any certainty what shape that response ought to take. 175 Kysar, supra note 44, at 1066–67 (“Additionally, when Congress intends to legislate in an experimental manner, temporary legislation may be appropriate.”). 176 Not all experimental policies are created equal, however, in how receptive they may be to judicially enforced sunsets on their constitutionality. Policies aimed at incentivizing certain behaviors, especially those with extensive and irreversible long-term costs, could be wholly undermined by a sunset which discourages rational actors from undertaking the incentivized project until there is more certainty about the policy’s permanency. Thus, theorists have argued against sunsets in legislation encouraging long-term investment in the renewable energy sector. See Dewey, supra note 164, at 1107–15 (comparing the effectiveness of sunsetted tax credits for investment in renewable energy projects with permanent credits for investment in low-income housing). 177 DAVID STRAUSS, THE LIVING CONSTITUTION 40 (2010) (arguing that Justices should approach constitutional cases, as a subspecies of the common law, with the dual attitudes of “humility and cautious empiricism.”).


and has a continuing role to play in the Court’s work.178 In recent decisions, the Justices have openly yearned for temporal limits on some of the decisions they issue. Such limits would work in concert with the deliberate evolution of constitutional law, and the Court should more forthrightly establish them through the use of judicially enforced sunsets on the constitutionality of government policies.

In this Article, I have argued that the Court could utilize such sunsets to achieve their limiting aims, in the process enhancing the efficiency and accuracy of constitutional adjudication in our nation. The Article drew from the existing scholarship on legal sunsets, primarily in the legislative branch, and then advanced sunset scholarship significantly in the judicial arena. It outlined more clearly what a decision containing a sunset might look like and how it might function. It then presented a unique justification for those sunsets, suggesting how they might render Supreme Court decisions more efficient if commonly employed. Further, the Article defended against myriad possible sunset critiques before concluding with an assessment of the most likely policy contexts for their deployment.

Judicially enforced sunsets on the constitutionality of a government policy would make a timely addition to the Court’s jurisprudence. Its recent rulings in affirmative action cases and Voting Rights Act challenges demonstrate the necessity for this judicial instrument. Reliance upon such sunsets is not a sign of judicial indecision or weakness. It is a reflection of the powerfully positive effects that a cautious constitutional jurisprudence can have.

178 See generally Gentithes, supra note 84.

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1 Gentithes Sunsets (Page Proof Ready)[1]