In 1787, when the U.S. Constitution was being drafted in Philadelphia, the average life expectancy for a man who reached age 25 was about 72 years.

The founding fathers never contemplated that a U.S. Supreme Court justice would serve 35 years on the bench. In October, Justice Clarence Thomas will do just that. Last month, Thomas became second only to Justice William O. Douglas in court longevity. Douglas served 36 years on the high court, beginning before World War II and ending after the Vietnam War.

According to Professor and former federal Judge Nancy Gertner, Justice Thomas is far from alone in the last half-century. "Justice John Paul Stevens served nearly 35 years before he stepped down in 2010. In the last fifty years, Justices William J. Brennan Jr., Hugo Black, William Rehnquist and Anthony Kennedy all joined the three-decade club." Gertner continued, "The average justice's tenure is now more than 28 years."

When Brennan retired, he was 90 years old. If Clarence Thomas lasts as long as Brennan, he will have spent 47 years on the Supreme Court. That is not good for the Court and not good for democracy.

The GOP understands the power of lifetime appoints. The last three justices appointed by a Republican are ages 61, 58 and 54, respectively. They could all serve into their 70s, which means more than two decades on the court.

How do you stop the threat of despotic judicial control? Term limits.

Why aren't term limits in place already? According to The New York Times, until recently, there was no clear need for term limits. Throughout most of American history, the average justice served for about 15 years.

Life tenure and salary protection were granted to federal judges because the Constitution's framers knew that judges would sometimes be called on to make unpopular decisions, reported the Brennan Center. In Federalist Paper 78, Alexander Hamilton wrote that life tenure would contribute to an "independent spirit in the judges which must be essential to the faithful performance of so arduous a duty." The Brennan Center suggested that if judges instead had to depend on periodic reappointment, there would be a "danger of an improper complaisance" to the appointing branch of government. Such a system would "be fatal" to judges' "necessary independence."

Hamilton was referring to all federal courts, not just the Supreme Court. Term limits should be equally applied to all federal judges. There are 890 federal judges in this country, including the Supreme Court. According to Maryland Today, the median age of a federal judge hit 70 for the first time in 2023. In fact, 10% of federal judges are 85 years or older.

This spring, Federal Judge Pauline Newman asked the Supreme Court to let her return to the bench. Judge Newman is 98 years old. She has been off the court for three years due to questions about her competency.

Term limits would also bring the federal judiciary in line with the 49 states that have some sort of mandatory retirement for judges. Rhode Island is the outlier as the only state that does not limit the age or mandate the retirement of judges.

U.S. Representative Tom Barrett (R-MI) has proposed a constitutional amendment mandating term limits for judges of the Supreme Court and all federal judges. An amendment requires approval by two-thirds of the members of both the House and the Senate and ratification by the legislatures of three-fourths of the states

Barrett's resolution provides, "Each judge of the Supreme Court and each inferior court shall be appointed to serve during good behavior for a term of 20 years." The amendment would not be retroactive. The term limits would only apply "to an appointment occurring on or after the date of the ratification of this article."

Term limits for federal judges may be a hard sell, but it is worth the effort. The courts need consistent turnover; a single party or ideology dominating the court is bad for America.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book, "The Executioner's Toll," 2010, was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino

Photo credit: Tim Mossholder at Unsplash