Judicial sunsets solve and revitalize rule of law.

In addition, sunsets on constitutionality will promote several Rule of Law virtues that allow private actors across the nation to comply with the Constitution’s requirements more efficiently. If the Court can clearly announce that a particular government policy will remain constitutional for at least an extended sunset period, citizens will not need to be experts at parsing divided opinions in order to understand the current state of constitutional law. This added clarity in our nation’s foundational norms will in turn enhance their public accessibility, and will also render the law of the Constitution more predictable and thus a more useful edifice upon which citizens can order their private affairs.

First, there is significant Rule of Law value to a legal regime that is clear. Such clarity is needed to guide the actions of citizens, provide fair warning if life, liberty, and property are at stake, and protect expectations of how others, including the state, will behave.148 Sunsets will allow the Court to specify a period during which a policy will remain constitutional while delineating precisely how and when the Court is willing to revisit the issue, rather than leaving it open to conjecture when the Court might again see fit to issue new edicts on the topic that unsettle vast swathes of the legal regime.

Clear, intelligible Supreme Court opinions in turn open constitutional law for public consumption. There are gains to be reaped from ensuring that the law of the land is openly promulgated to the masses, even if the majority of the citizenry will react indifferently.149 Decisions announcing a constitutional sunset bring the status of the law into the sunshine where all can at least potentially view it. This is a vast improvement from leaving the public on edge as they try to anticipate the whim of a few key Justices who might revisit an opinion at any time. The reduced opacity in the Court’s jurisprudence creates a virtuous cycle whereby its relationship to the public at large is more responsive and far more useful in citizens’ daily lives.

Finally, sunsets that clarify the status of certain constitutional decisions will add stability to the Court’s jurisprudence, again serving important Rule of Law goals. Actors seeking to order their affairs in compliance with government policies and programs can rest assured that those policies and programs will remain stable, thereby significantly lowering their transaction costs.150 Such a stable legal regime is more predictable, generating viable expectations amongst citizens as to how a policy’s constitutionality will be viewed for at least a significant period of time.151 That predictability allows those subject to its constraints to utilize their talents within the consistent bounds of the law.