Sunsets are key to adapt to evolving legal circumstances.

Yet routinely we are given, as the answer to the most thorny national security/civil liberties dilemmas of the day, precedent from long ago. Are military tribunals constitutional? Well, the answer to that turns on what the Supreme Court said in 1942.5 Are enemy aliens stripped of their rights to habeas corpus? Well, the answer to that turns on what the Supreme Court said in 1950.6 And so on and so on. The debate here is stultifying and unilluminating. The answers to these vital questions should not turn, in any meaningful way, on what a handful of Justices may have thought a half-century ago, in a different world, with different legal standards. 7 Rather, they have to be decided by contemporary Justices translating the time-honored principles of our Constitution to facts of the modern era.8

It was perhaps because the language of judicial sunsets had not been invented, that the one possible recent example of it, Crutter, was itself hazy. Some of the haze is due, no doubt, to the way in which the Court shoehorned the sunset into the opinion. The Supreme Court for years has insisted on affirmative action having a "logical stopping point."27 But this stopping point was one internal to the programthe term was meant to refer to the time period in the affirmative action policy where the preference should end. In Crutter, however, the Court appears to have imposed an external, judicial stopping pointone that had nothing to do with the University of Michigan policy. The Court said, in essence, that it did not want to give the University carte blanche for all time.28 This does not really appear to be a claim about a "logical stopping point" as such; rather, it appears to be one about the vitality of a Supreme Court opinion in the face of evolving circumstances.