49 Pages Posted: 4 May 2010
Date Written: May 3, 2010
Issues of time and temporality pervade American constitutional adjudication, at both a doctrinal and a broader, structural level. The doctrinal issue concerns the extent to which judicial decisions operate forward, backward, or some combination of both across time. The structural issue concerns the related and overarching question of how the Supreme Court, as a court, operates in time, and the temporal division of authority between courts and legislatures. In both contexts, the Supreme Court is an actor in time. This Article examines the Court’s treatment of temporal issues through three case studies: (1) a pair of early decisions in which the Court confronted both the transition from the colonial to the republican constitutional regime, and the temporal scope of legislative acts; (2) the Court’s twentieth-century doctrine on adjudicative retroactivity; and (3) the recent case of Grutter v. Bollinger, in which the Court’s temporal imperialism led it to claim ever-greater power to define the relevant timeframe for antidiscrimination law. The Court’s institutional self-presentation suggests that it is immortal and therefore not temporally bound, and that claim of continuity typically extends to its decisions. But the causal flow from institutional to doctrinal continuity sometimes breaks down. Perhaps not surprisingly, these moments of disjunction tend to arise when the Court chooses to allow them to. Even in situations that call into question the continuity of a particular doctrine, therefore, the Court remains master of time in that it as an institution determines when and how the façade of doctrinal continuity is to be breached.
Keywords: retroactivity, time, temporal effect, judicial review, prospectivity, legislative review
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