Time Limits on Judicial Opinions
posted by Gerard Magliocca
Here’s an idea that I’m working on for an article. (I have no draft to plug shamelessly yet.) Many statutes have a sunset or duration clause that sets an expiration date for their provisions. Why not judicial opinions? Neal Katyal (now at the SG’s Office) suggested this in a piece a few years ago with respect to national security cases. And the Supreme Court invoked something like this when it held that the use of racial preferences in law school admissions was constitutional but might not be in twenty-five years. I’m interested in why duration clauses are not used in opinions, and whether extending the idea to the judiciary is a good idea. (For simplicity’s sake, let’s limit the discussion to the Supreme Court, as it’s unlikely that a judicial sunset would be appropriate anywhere else.)
Many of the factors that motivate legislators to impose sunset clauses apply to the Court. For instance, statutes might be time-limited because people are uncertain about how a proposed rule will work in practice, or because there are concerns about cognitive bias when a law is passed in an emergency. A duration provision can also be a tool to garner votes from members who have doubts about the underlying substance of the bill. All of these interests could be present in a case. The Justices are often uncertain about the real-world consequences of their rulings, make decisions under crisis conditions, or struggle to forge a consensus. Thus, there are probably some circumstances where adding a sunset clause limiting the effect of a holding to, say, ten years would have merit. Of course, the Court reviewing a holding after the time limit expires would be free to retain the holding. It would just not be bound to do so under the principles of stare decisis.
There are two reasons why judicial sunsets might be unsound. First, one could say that the inertia within the legislative process is much greater than the inertia within the judicial process. Legislatures use duration clauses mainly because they are worried that a bad rule with not be repealed because of obstacles such as the executive veto, bicameralism, a filibuster, or an obstinate committee chair. The Court does not face these problems. In other words, the Justices can easily fix a previous mistake by distinguishing a precedent, limiting a troublesome case to its facts, or just ignoring it entirely before even reaching the question of overruling that decision. These interpretive techniques make a sunset unnecessary.
While I think this point is conclusive most of the time, I am not sure that it is valid all of the time. There are at least two situations where judicial inertia might be high enough that we should worry about being stuck with a harmful precedent and could use a sunset. First, the Court might apply a super-strong version of stare decisis, which could unduly limit judicial flexibility. Indeed, you might say that in cases of statutory interpretation, where the Justices typically do apply such a presumption, they are just compounding the problem of legislative inertia. Second, there may be cases where the Court will not grant certiorari again for decades, and thus there will be no opportunity to revisit the question. Thus, the inertia stems from the uncertainty about whether a future Court will exercise its discretion to hear a case. A duration clause might alleviate this problem, if it is a problem, by forcing the Justices to reexamine an issue or by limiting the harm from a sloppy ruling.
The other objection to judicial sunsets is more straightforward. Legislatures are the lawmaking body, and they can legitimately limit the temporal reach of their statutes. But the Court is engaged in interpretation and would undermine its authority by making it crystal clear that the underlying text has no permanent meaning. In effect, putting time limits on opinions harms the rule of law.
Once again, I think this is right most of the time, but not all of the time. After all, the same objection can be made against overruling precedent. If the Justices overrule their own cases too often, that would undermine the rule of law. But that doesn’t mean they should never do it, and thus I’m not certain that the legitimacy objection against judicial sunsets is airtight.
Anyway, I haven’t made up my mind yet. Nevertheless, it seems to me that judicial restraint can be about limiting what courts decide, the scope of what they decide, or the duration of their decisions. The first two are commonly used. Why not the third?
April 3, 2009 at 8:50 am
Posted in: Constitutional Law
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Responses (4)
A.W. - April 3, 2009 at 9:36 am
The reason why this will never be widely used is because it rips the lid off the often thin veneer that these opinions are in fact “just reading the law.” Its one thing to say that affirmative action is justified because of the present reality of racial discrimination and since you believe the underlying problem will be solved in 25 years that you don’t expect affirmative action to be justified 25 years from now. But to say, “you have a right to hear the miranda rights… but only for five years” only makes it clearer that the Supremes are just making it up.
As it is, O’Connor’s 25 years comment has garnered alot of criticism, even as defensible as i find it (and regular readers know that i believe in following the constitution as written). they aren’t going to invite this criticism all the time this way.
Applekeys - April 3, 2009 at 9:39 am
It seems like context matters a great deal. The big racial preferences, national security, substantive due process cases might very well ought to expire. But sometimes there are obscure tax or bankruptcy provisions where the supreme court’s only interpretive guidance is some holdover opinion from Cardozo. Should that opinion expire?
It also would raise a question for lower courts. What if the opinion expires in an area with little supreme court activity (bankruptcy): do the lower court opinions that relied on that case, even recent ones, fall away as well?
Anyway, the idea is interesting.
Jake - April 4, 2009 at 9:50 pm
Terrific idea. Once made law, this sunset provision would immediately annul Wickard v. Filburn and its progeny. The Commerce Clause would return to its original meaning, and the new Administration and current Congress would have to search for the road to serfdom in ways other than seizing and socializing large chunks of American industry.
yclipse - April 5, 2009 at 9:40 am
Bad idea. This suggests that judging is no different than legislating, which opens up all kinds of other pernicious ideas.
The concept of stare decisis is based on the premise that a reasoned legal analysis and conclusion in one case should normally be followed in the next case rather than doing it all over again. Why would the passage of a specified time change that? And if it did, for a particular reason, a later court could always take that change into account. That is what they do now.
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