Public law litigation is often politics by other means. Yet scholars and
practitioners have failed to appreciate how public law litigation intersects with
an important aspect of politics—electoral time. This Essay identifies three
temporal dimensions of public law litigation. First, the electoral time of
government litigants—measured by the fixed terms of state and federal
executive officials—may affect their conduct in litigation, such as when they
engage in midnight litigation in the run-up to and aftermath of their election.
Second, the electoral time of state courts—measured by the fixed terms of
state judges—creates openings for strategic behavior among litigants (both
public and private), such as when they engage in temporal forum shopping
between the court before and after judicial elections. Third, state judges may
pursue their preferences in light of their own electoral time. This Essay
suggests reasons to be concerned with these time-motivated behaviors,
especially when they seek to entrench policies and to counteract the results of
democratic elections. How courts, policymakers, and the public will respond
to these concerns, only time will tell.