Article | Legal Theory
by David Schraub*
From Vol. 93, No. 3 (March 2020)
93 S. Cal. L. Rev. 431 (2020)
Keywords: Sunset Provision, Grutter v. Bollinger
Sunset provisions—timed expirations of an announced legal or policy rule—occupy a prominent place in the toolkit of legislative policymakers. In the judiciary, by contrast, their presence is far more obscure. This disjuncture is intriguing. The United States’ constitutional text contains several sunset provisions, and an apparent doctrinal sunset appeared in one of the most high-profile and hot-button Supreme Court decisions in recent memory—Grutter v. Bollinger. Grutter’s famous declaration that while affirmative action programs in pursuit of diversity ends were currently constitutional, “25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” Yet despite voluminous literature debating the merits of sunset clauses as a legislative practice, scholars have not systematically explored the utility of incorporating sunset clauses into judicial doctrine.
This Article provides the first comprehensive analysis of the place of sunset provisions in judicial doctrine. It defends the conceptual legitimacy of doctrinal sunsets as valid across all theories of legal interpretation, including textualist or originalist accounts which might seem incompatible with admitting any change in legal outcomes without formally amending the underlying text. In addition, it articulates the practical utility of doctrinal sunset clauses in scenarios where predictable changes in circumstances make it unlikely that an initial rule-decision will remain optimal over a long period of time. This can occur in mundane situations where a placeholder rule is necessary to govern until a more complex and tailored rule can be operationalized. It can also occur in sharply controversial scenarios where a decision is needed immediately under conditions that do not allow for optimal deliberation. Finally, sunsets can be beneficial as a means of prompting reassessment and tailored adjustment of prior decisions which— though perhaps products of the best judgment of their eras—are unlikely to continue tracking changing social circumstances.
*. Lecturer in Law and Senior Research Fellow, University of California, Berkeley School of Law. Thanks to Amin Afrouzi, Larry Alexander, Emily Berman, Josh Blackman, Kiel Brennan-Marquez, Franciska Coleman, Anuj Desai, Craig Green, Aziz Huq, George Lambeth, Jud Mathews, Larry Solum, David Strauss, and the participants at the National Conference of Constitutional Law Scholars, the Berkeley Reading Group in Legal Philosophy, and the Loyola University Constitutional Law Colloquium for helpful comments.