Term Limits and Turmoil: Roe v. Wade's "Whiplash"

Abstract

A fixed eighteen-year term for Supreme Court Justices has become a popular proposal with both academics and the general public as a possible solution to the countermajoritarian difficulty and as a means for depoliticizing the confirmation process. While scholars have extensively examined the potential benefits of term limits, the potential costs have been underexplored. We focus on one cost: the possible effects of term limits on doctrinal stability. Using seven statistical models that measure potential fluctuation in Supreme Court support for Roe v. Wade had the Court been operating under term limits since 1973, we explore the level of constitutional instability that a term limit system would engender. Our models incorporate varying degrees of each new Justice’s loyalty to the nominating president’s ideology and deference to precedent, as well as accounting for the Senate’s level of influence on the confirmation process under conditions including the elimination of the filibuster. The results suggest that term limits could fundamentally change the way that the law evolves and might well lead to a substantial loss in doctrinal stability.