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Whether adopting term limits would accomplish all of these goals is, of course, disputed. But is there any reason not to try it? In “Term Limits and

Turmoil: Roe v. Wade’s Whiplash,” forthcoming in the Texas Law Review, we argue that there is a very serious potential downside to limiting justices

to 18-year terms. A Supreme Court that welcomes a new justice every two years, and turns over entirely over the course of every 18 years, could wreak

havoc on doctrinal stability. Under the current constitutionally mandated system of life tenure, the court changes slowly. Most justices serve at least 20

years and many serve 30 years or more; no new justices joined the court at all between 1994 and 2005. This longevity and stability means that

doctrine changes slowly and incrementally. A constantly changing court, on the other hand, might make sudden and radical changes in doctrine.

But is this a realistic fear? Our article tries to assess just how much instability an 18-year term limit would cause. We use a computer simulation to

model what is likely to have happened to abortion rights after 1973 (when Roe v. Wade was decided) if term limits had been in place from then until

now.

nominating president, the party composition of the confirming Senate, the individual justice’s likelihood of voting in line with the nominating

president’s ideology (“loyalty”) and the individual justice’s level of deference to precedent. For the first two factors, we rely on actual historical data

about the presidency and the Senate; we assume that Republican presidents and senators prefer a justice opposed to abortion rights and that

Democratic presidents and senators prefer a justice who favors abortion rights.

For loyalty and deference to precedent, we discuss three different values for each variable (low, moderate and high levels of loyalty; and no deference,

weak deference and strong deference to precedent) and present the results of five of the nine possible combinations.

Using all four factors, we assign to each justice a probability that he or she will vote to retain the status quo at the time (either Roe or its previous

overruling). So, for example, if we assume that justices are moderately loyal and do not defer to precedent, a justice appointed by a Democratic

president with a supermajority of Democrats in the Senate has an 85 percent probability of upholding (or reinstating) Roe, a justice appointed by a

Democratic president with a Democratic Senate has a 75 percent probability of upholding (or reinstating) Roe, a justice appointed by a Democratic

More loyal justices are assumed to be 10 percent more likely, and less loyal justices 10 percent less likely, than their moderate brethren to follow the

probability that a majority of justices would vote to change the status quo. Luckily, there is a ready-made tool: Monte Carlo simulations. Essentially,

for each newly constituted Supreme Court we fed a computer the probability assigned to each justice (derived from the four identified factors). The

computer relied on those probabilities to create 10,000 hypothetical Supreme Court “decisions” – sort of like asking a computer to simulate 10,000

coin flips, dice rolls or card deals (hence the name “Monte Carlo” simulation, a reference to the uncle of one of its creators who liked to frequent the

Monte Carlo casino). We used the results of all 10,000 “decisions” to identify the bottom-line probability that a panel made up of those nine justices

would reverse (or reinstate, if it had already been reversed) Roe. For statistics buffs: Votes were drawn from the binomial distribution and several

simulations were run using 100,000 trials to test robustness. The results were nearly identical.

And what did we find? Roe suffered whiplash. Positing moderately loyal justices with no deference to precedent, Roe would have been overruled in

1987, reinstated in 2009 and overruled again in 2017.

proponents. In addition, deference to precedent is always lower in constitutional cases because Congress cannot override constitutional decisions.

Finally, studies suggest that lower courts – the final arbiters in most cases – are more likely to defy Supreme Court precedent if the current court is

ideologically distinct from the precedent-creating court, even if the Supreme Court itself is unlikely to overrule the precedent. For these reasons, we

think that the no-deference models that predict three swings of precedent in 46 years are the most plausible.

In the end, then, term limits are likely to have a substantial detrimental effect on doctrinal stability. A case could go from being a sure winner to a sure

loser over the course of a single election. And that doctrinal instability would likely alter the nature of jurisprudential evolution and change the focus

of litigants, policy makers and lower-court judges from doctrine to the court’s composition, further politicizing the court. Although there may be good

arguments for term limits, we should think long and hard about these dangers before considering such a major change to our judicial system.

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