Sunsets on Constitutionality & Supreme Court Efficiency

50 Pages Posted: 12 Jan 2017

See all articles by Michael Gentithes

Michael Gentithes

University of Akron School of Law; Chicago-Kent College of Law - Illinois Institute of Technology; New York University School of Law; Loyola University Chicago School of Law

Date Written: September 1, 2014

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.

Suggested Citation

Gentithes, Michael, Sunsets on Constitutionality & Supreme Court Efficiency (September 1, 2014). Virginia Journal of Social Policy and the Law, Vol. 21, 2014, Available at SSRN: https://ssrn.com/abstract=2897036

Michael Gentithes (Contact Author)

University of Akron School of Law ( email )

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Chicago-Kent College of Law - Illinois Institute of Technology ( email )

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New York University School of Law ( email )

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Loyola University Chicago School of Law ( email )

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