Chief Justice’s illness could change makeup of Supreme Court

(U-WIRE) WASHINGTON – Since 1994, the face of the Supreme Court of the United States has remained unchanged, consisting of a delicate balance of liberal, conservative, and moderate justices who together weathered some of the toughest legal battles of our time.

Yet suddenly, with only ten days left before the Election, 80-year-old Chief Justice William H. Rehnquist was hospitalized at Bethesda Naval Hospital after having been diagnosed with thyroid cancer-fueling speculation of his retirement and an impending shake-up of the Court.

Though he plans to remain involved with the cases during his absence, Rehnquist has already missed four straight days of court since announcing his disease on Oct. 25. Justice John Paul Stevens is presiding over the court while Rehnquist undergoes treatment. On Monday, the Supreme Court heard arguments in two cases without Chief Justice’s presence, though he did work from home.

Dr. Peter Singer, Professor of Medicine and Chief of Clinical Endocrinology at the University of Southern California’s Keck School of Medicine says that although thyroid cancer is usually easy to treat with surgery, the fact that Rehnquist is receiving chemotherapy and radiation indicates the possibility of a very lethal form of cancer called anaplastic thyroid cancer.

“Rehnquist’s is a very infrequent but unfortunate situation of a very rapidly growing tumor for which there is no effective treatment,” Singer said. “I’d be very surprised if he had more than another few months.”

The reelection of President George W. Bush to office as well as Rehnquist’s failing health, all point to the likelihood that the Chief Justice will step down. Justices often retire while their appointing party is in office and Rehnquist is a Republican who was appointed by President Richard Nixon.

In an ironic twist of fate, the presidency that was decided by this Supreme Court in 2000 will in 2004 be the deciding factor in the future make-up of the highest court in the land.

President George W. Bush has publicly stated his regard for the Court’s most conservative justices-Antonin Scalia and Clarence Thomas-and he has also naming a number of very conservative judges to the federal appeals courts. However, for the sake of getting an appointee in quickly with out too much an outcry from Democratic legislators, Bush may seek out someone who is either as conservative or slightly more moderate than Rehnquist.

“I don’t particularly want a big fight in the Senate,” said Bush in 2002. “I may decide to send somebody up who will create a tough fight. I don’t know.”

Though the prospect of a Bush appointee to the Supreme Court sent of panicked speculation about the future of hot-button issues like abortion and gay rights, legal experts agree that a Rehnquist resignation isn’t likely to much upset the composition of the court.

“Chief Justice Rehnquist is already a conservative and so replacing him with another conservative will not be a major shift in the direction of the court,” said Jonathan R. Siegel, Professor of Law at the George Washington University Law School. “If, however, [more liberal] Justices Stevens or O’Connor retire, that would be an enormous shift.”

GWU junior Sarah Lovenheim agrees that a Bush appointee isn’t likely to upset the balance of the court.

“I think Bush will appoint another similar conservative justice to serve in place of him,” said Lovenheim. “It will probably be somebody who will define the law very narrowly and read the Constitution in a literal way and I’m not sure that that’s what the country needs right now because we are already pretty conservative.”

Since his appointment to the bench by President Nixon in 1971, Rehnquist has focused on promoting state-power over federalism. He voted against abortion and wrote the dissenting opinion in the 1973 Roe v. Wade case. He also voted against expansion of desegregation in schools, in favor of capital punishment, and school prayer. In 1998, Rehnquist presided over President Clinton’s impeachment trial in the Senate.

Rehnquist’s conservative approach to law is clear both through his record and the way in which he interprets the Constitution. “Liberal” judges often see the Constitution as a document of principles that is in need of interpretation by the judges, preferably in reference to current attitudes. Conservatives like Rehnquist try to take it as literally as possible. That’s why such judges often differ on issues like the right to an abortion, since it is never explicitly stated in the Constitution.

For now, the Supreme Court is keeping silent about the possibility of a Rehnquist resignation. Until there is more information comes, speculation is all that’s fuelling this debate.

“I suspect that it is highly likely that he will resign, though of course we never know until they tell us,” said Mary Cheh, Professor of Law at GWU.

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