By student blogger Laura Elkayam
In September Professor Alison LaCroix, a legal historian and an assistant professor at the University of Chicago Law School, presented her recent article, “Temporal Imperialism”, which identifies and critiques the United States Supreme Court’s disoriented relationship with notions of time. Specifically, Professor LaCroix argues that despite its proclamations of institutional continuity, the Court in fact routinely engages in a kind of “temporal packaging” that indicates a more severed state of affairs.
Professor LaCroix identifies an emerging tension between the Court’s self-soothing fiction that it is the Court of yester-century, and the reality that contemporary justices (and, therefore, “the Court”) regularly bookend chunks of the linear timeline in order to navigate the issues presented. A memorable example of this “packaging” is Professor LaCroix’s discussion of the twenty-five-year timeframe constructed by the Court around affirmative action in Grutter v. Bollinger, 539 U.S. 306, 343 (2003) (“We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”). Professor LaCroix argues that the Court “attempt[ed]…to set an explicit time horizon, a temporal boundary in which all subsequent statements by the Court will be enclosed.” (Temporal Imperialism, 49). The discrepancy between an ideology of seamlessness – a unified Court from 1789 to the present — and the Court’s establishment of temporal cutoffs is apparent.
Professor LaCroix scrutinizes this disconnect and suggests that the implications of this tension are not necessarily confined to the judiciary’s internal self-identification processes. Rather, the Court’s personality necessarily affects all branches of government. When the Court boasts the force of an artificial 220-year momentum, while at the same time claiming and exercising the authority to pencil the borderlines of time (past, current, and future), it engages in a “temporal imperialism.” Primary “beneficiaries” of this imperialism are the presumably co-equal branches, who do not, and perhaps cannot make similar claims of institutional continuity. The Court’s simultaneous claim to both timelessness and the ability to erect temporal boundaries gives it a leg up. This identity struggle is therefore both problematic for the Court internally, and for the three-branches of government as a whole.
Professor LaCroix’s deep interest in this subject was apparent, and the Chicago-Kent faculty demonstrated its fascination with the topic during a hefty Q & A session filled with questions, critiques, and contributions. Professor LaCroix’s paper and presentation are part of a work in progress.