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

95 Pages Posted: 20 Jul 2019 Last revised: 28 May 2024

See all articles by Christopher S. Sundby

Christopher S. Sundby

Gelber Schachter & Greenberg, P.A.; University of Miami School of Law

Suzanna Sherry

Vanderbilt University - Law School

Date Written: February 14, 2019


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.

Keywords: Supreme Court, Term Limits, Instability, Roe v. Wade

Suggested Citation

Sundby, Christopher and Sherry, Suzanna, Term Limits and Turmoil: Roe v. Wade's Whiplash (February 14, 2019). 98 Texas Law Review 121, Vanderbilt Law Research Paper No. 19-33, Available at SSRN: https://ssrn.com/abstract=3334545

Christopher Sundby

Gelber Schachter & Greenberg, P.A. ( email )

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Suite 2600
Miami, FL 33131
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University of Miami School of Law ( email )

Miami, FL
United States

Suzanna Sherry (Contact Author)

Vanderbilt University - Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States
615-322-0993 (Phone)

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