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Proposals to Stay a SCOTUS Decision Out of Respect for Reliance Interests
Andrew Hyman

In an essay published this winter, Ed Whelan asked: “[W]hat if the Court said, ‘We believe this is the best reading of the Constitution. We recognize that it will be disruptive, and we’re going to give the political branches X years to work through an amendment to address this if they see fit’?”  Whelan’s idea of staying the effect of a U.S. Supreme Court (SCOTUS) decision for a fixed time is similar to the idea of allowing a judicial decision to apply prospectively but not retrospectively, even though the usual federal rule is that judicial decisions apply both prospectively and retrospectively.
As discussed in The Law of Judicial Precedent (c. 2016, chapter 37), the federal rule against prospective-only judicial decisions has exceptions, such as when retrospective application would destroy vested rights or contracts.  Whelan suggests another exception, and it’s a reasonable one.  I don’t think that such an exception would always be appropriate in constitutional cases, or even in constitutional cases that make a clear break with past decisions.  However, in a constitutional case where the Court would otherwise reach a different result based upon reliance interests and stare decisis, and thus would preserve a  departure from the Constitution’s actual meaning, the Whelan exception seems wise, as well as very similar to the existing exception that protects vested rights or contracts.  Allowing an appeal to the American people would seem like a very respectful thing for SCOTUS to do.  
One could imagine variations on Whelan’s proposal.  For example, the Court might stay its decision long enough to give people ample time to rely more fully on the status quo ante, while giving them plenty of time to prepare for the decision to take effect.  But ultimately, the actual meaning of the Constitution would prevail, and the Court’s former error would be corrected.
I do not believe that staying a decision in these ways would be unconstitutional.  But even if unconstitutional, the stay would be a temporary procedural matter, compared to permanently and substantively amending the Constitution (in effect) by judicial decision for as long as the country survives into the future, all the while tempting future judges to repeatedly wield that awesome amendment power.
Justices Douglas and Scalia may seem like an odd couple, but Scalia laudably wrote this in a 1989 dissent: “With some reservation concerning decisions that have become so embedded in our system of government that return is no longer possible (a description that surely does not apply to Booth), I agree with Justice Douglas: ‘A judge looking at a constitutional decision may have compulsions to revere past history and accept what was once written. But he remembers above all else that it is the Constitution which he swore to support and defend, not the gloss which his predecessors may have put on it.’"  Indeed, preserving the gloss is not as necessary as the Court has sometimes said.
Justice Gorsuch suggested in 2015 when he was on the Tenth Circuit that the retroactivity of judicial decisions follows from the separation of powers.  But I do not believe he ruled out exceptions to retroactivity.  Justice White went a lot farther than making exceptions to retroactivity, in a 1987 SCOTUS dissent:
[C]oncerns about the supposed usurpation of legislative authority by this Court generally go more to the substance of the Court's decisions than to whether or not they are retroactive. Surely those who believe that the Court has overstepped the bounds of its legitimate authority in announcing a new rule of constitutional law will find little solace in a decision holding the new rule retroactive. If a decision is in some sense illegitimate, making it retroactive is a useless gesture that will fool no one. If, on the other hand, the decision is a salutary one, but one whose purposes are ill-served by retroactive application, retroactivity may be worse than useless, imposing costs on the criminal justice system that will likely be uncompensated for by any perceptible gains in "judicial legitimacy."
White’s concerns can be addressed much more modestly by making a small number of SCOTUS decisions prospective-only starting on a future date certain.  This would probably do wonders for the original meaning of the Constitution, although it is possible that some justices might take it as an opportunity to give their own preferred innovations a smoother birth.