The contested role of time in equal protection

This Essay examines how the Supreme Court has used conceptions of time and the passing of time to narrow the definition of racial discrimination and, ultimately, to constrain the very meaning of equal protection. The Essay challenges the common notion in equal protection that as time passes, discrimination and its harmful effects dissipate and eventually expire. Based largely on this notion, courts set artificial time horizons for identifying the continuing vestiges of past discrimination, which in turn rationalizes persisting inequality in the present. Using social science, the Essay explains how social conceptions of time discourage deeper inquiry into the relationship between past discrimination and present systemic inequality. It proposes that equal protection reject notions that discrimination naturally subsides so that courts and other constitutional actors may more freely explore these connections between past and present.