Temporal imperialism.

• Author: Lacroix, Alison L.
• Position: Timeframe for antidiscrimination law

Issues of time and temporality pervade American constitutional adjudication, at both a doctrinal and a broader, structural level. The doctrinal issue concerns the extent to which judicial decisions operate forward, backward, or some combination of both across time. The structural issue concerns the related and overarching question of how the Supreme Court, as a court, operates in time, and the temporal division of authority between courts and legislatures. In both contexts, the Supreme Court is an actor in time.

This Article examines the Court's treatment of temporal issues through three case studies: (1) a pair of early decisions in which the Court confronted both the transition from the colonial to the republican constitutional regime, and the temporal scope of legislative acts; (2) the Court's twentieth-century doctrine on adjudicative retroactivity; and (3) the recent case of Grutter v. Bollinger, in which the Court's temporal imperialism led it to claim ever-greater power to define the relevant timeframe for antidiscrimination law. The Court's institutional self-presentation suggests that it is immortal and therefore not temporally bound, and that claim of continuity typically extends to its decisions. But the causal flow from institutional to doctrinal continuity sometimes breaks down. Perhaps not surprisingly, these moments of disjunction tend to arise when the Court chooses to allow them to. Even in situations that call into question the continuity of a particular doctrine, therefore, the Court remains master of time in that it as an institution determines when and how the facade of doctrinal continuity is to be breached.

INTRODUCTION I. TEMPORALITY IN THE EARLY REPUBLIC A. Calder v. Bull B. Ogden v. Saunders II. JUDICIAL RETROACTIVITY IN THE TWENTIETH CENTURY III. DOCTRINAL TIME HORIZONS CONCLUSION We shed as we pick up, like travellers who must carry everything in their arms, and what we let fall will be picked up by those behind. The pro cession is very long and life is very short. We die on the march. But there is nothing outside the march so nothing can be lost to it. (1)

INTRODUCTION

Unlike many modern constitutional democracies, the United States is still in its first republic. This means that the entity called "the United States of America," as created by the Constitution, can be said to exist in a continuous relationship from 1789 to the present day.

Yet even to speak of the "first republic" seems odd: why use an ordinal number to denote the first and, so far, the only? But thinking of the American constitutional regime in this sense--as just one in a potential series of regimes--is useful because it calls into question one of the central assumptions of American constitutional law: the idea that the Republic of 2010 is in a fundamental sense continuous with that of 1789. This assumption is particularly evident in the Supreme Court's case law, in which the Court regularly refers to the decisions of past decades or even centuries as "our" decisions, or in the custom of tracing particular seats on the Court back to their first occupants in the late-eighteenth or early-nineteenth century. The Court's self-presentation and self-conception thus presume continuity. (2)

The Justices' rhetorical insistence that the Court is both a continuous and a unitary institution is striking, however, given the obvious changes in membership and doctrine that the Court as an institution has witnessed since its founding, as well as the relative rarity of per curiam decisions since the days of Chief Justice John Marshall. As an analytic matter, one might reasonably argue that no such entity as "the Court" exists; rather, the Supreme Court is a series of courts connected across a series of cases that exist along a series of moments in time. For the most part, however, the Justices' decisions suppress this multiplicity and discontinuity in favor of a posture of unitariness and continuity. The composition of the Court thus changes over time, but the language of the decisions that issue from the Court presumes fixedness and permanence, presenting the Court as a single continuous entity with a single lifespan.

Questions of time and temporality pervade American constitutional theory, at both a doctrinal and a broader, structural level. (3) The doctrinal issue concerns the extent to which law--in the forms of both judicial precedent and legislative action--operates forward, backward, or some combination of both across time. Implicating fundamental questions of justice, fairness, and notice, these inquiries typically involve situations in which the Supreme Court sets temporal boundaries on its own decisions or on the actions of another branch of government--usually a legislature--with important consequences for individual litigants. The structural issue concerns the related and overarching question of how the Court, as a court, operates in time, and how the Justices articulate the temporal division of authority between courts and legislatures.

In both contexts, the Court is one among many actors, existing-as all actors must--in time. Yet the Court typically disavows this identity, presenting itself as an institution operating in a much larger temporal sphere than that of any particular human observer, in a realm continuous with the Constitution itself. For the most part, such a view comports with a general sense that the Court must operate in this way, that in fact it is precisely the function of courts as courts to stand for continuity. One need only think of the judicial norms of stare decisis and precedential reasoning to appreciate the special relationship that courts have with time.

Occasionally, however, the Court explicitly confronts the question of time--specifically, the question of change over time. These moments of confrontation occur when the Court self-consciously addresses the issue of the temporal effect, or lifespan, of a particular legislative act or judicial decision. And here is the puzzle this Article takes up. The Court's institutional self-presentation suggests that it is immortal and therefore not temporally bound, and that claim of continuity typically extends to the product of that institution--namely, its decisions. But not always. The causal flow from institutional to doctrinal continuity sometimes breaks down. Perhaps not surprisingly, these moments of disjunction tend to arise when the Court chooses to allow them to. Even in situations that call into question the continuity of a particular doctrine, therefore, the Court remains master of time in that it as an institution determines when and how the facade of doctrinal continuity is to be breached. In these moments, two stories about the Court and time emerge: first, the lifespan of any judicial or legislative act is potentially finite but unknown until the moment of its demise; second, the demise will be brought about by an entity that very likely predated, and certainly will endure after, the act in question.

To be sure, the issue of legal change is fundamental to all legal systems, especially systems founded on a written constitution. But the Court's unique role as a court bound by no other court, and bound very little (or perhaps not at all) by the decisions of any legislature, means that the Justices have a far greater power to define lifespans than do other courts. Further, it means that the scope of the Justices' power to terminate a law extends far beyond that of even the most positivist of legislatures. The fact that the Court is not bound to obey any institution, even itself, means that the question whether the particular judicial decision or legislative act under consideration has outrun its course is in some sense always potentially, and in some cases actually, before the Court.

Thus, there are important questions to ask: How does a court that regards itself and the regime in which it operates as timeless conceive itself to be functioning in these moments of change? What are the different approaches the Court uses to conceptualize the temporal scope of legal change--not with respect to substance, but with respect to time itself? To what extent does the Court view itself as controlling this temporal scope? One approach might be to view the transition from a prior legal state or rule in relative terms: as a two-part legal regime involving the law "before" and the law "after." (4) A different approach views the transition as unfolding over a more linear, chronological sweep of time, in what might be viewed as a more objective vision of how time operates. (5)

Over the course of the 221 years since our Republic began, the Court has demonstrated varied and sometimes confused views of how to understand and manage temporal transitions in the legal regime. In some cases, the Court has segmented doctrinal time into "before" and "after," devoting substantial energy to descrying the proper line between these periods. In other instances, the Court has presented its decisions as operating within a more chronological timeframe, packaging its decisions into temporal epochs and attempting to give an account of how those epochs fit together. (6)

Throughout the Court's history, explicit considerations of law's temporal effect have often accompanied the Justices' efforts to calculate the moment of a particular law's origin. These moments of change involve much more than the straightforward overruling of prior precedent. Rather, they are moments of transition not only with respect to substance but with respect to time itself. The question this Article takes up is not just the Court's own question in such situations of how to treat changes in the law, but the broader interpretive question of whether the Court adjusts--or ought to adjust its own conception of how its decisions operate in time. Moments of doctrinal discontinuity, in other words, provide useful opportunities to interrogate claims of institutional continuity.

Temporal questions...