Although no one is quite certain of what Chief Justice William H. Rehnquist’s thyroid cancer means for this election, everyone is clear that it ups the political ante: Following a month of inchoate assertions and counter-assertions about the dangers posed by a potential president’s potential nominees—should some possible Supreme Court vacancy open up, suddenly the chief justice’s illness concretizes the stakes. An 80-year-old justice who has served on the high court for 32 years—and who has almost single-handedly reshaped whole areas of jurisprudence—is seriously ill. On a 5-4 court, that could be a big deal.
But is it? For one thing, the court has taken the official position that this will not slow Rehnquist down one step—he plans to participate in oral argument next Monday, Nov. 1. He has also hired his law clerks though 2006. This is not unprecedented. Justices Sandra Day O’Connor and Ruth Bader Ginsberg are both famous at the court for having powered through the court term, undaunted by their own cancer battles. And early news reports suggest that thyroid cancer is both treatable and eminently survivable.
Something else to consider: Rehnquist’s work on the court is not yet done. He has led the court right up to the end zone on several of his lifelong causes: He framed and launched the federalism revolution; he spearheaded vast rollbacks in the rights granted criminal defendants by the Warren Court; and he has punched a sizeable fist through the wall between church and state. But most court watchers agree that he hasn’t achieved everything he wanted to in these areas; the federalism revolution has even stalled out in recent years. With his personal legacy so clearly on the line, it’s likely the chief will hang around as long as he possibly can.
The possibility of Rehnquist stepping down also crystallizes how oversimplified the recent arguments about the power of Supreme Court appointments really are. Suddenly this “four-seats-to-fill-with-whatever-maniac-he-likes” rhetoric is shown to be at least somewhat lacking in nuance. Because if Rehnquist steps down, and President Bush is re-elected, the 5-4 balance on the current court would remain unchanged. In fact, Bush might arguably have a hard time confirming someone as conservative as Rehnquist in the current Senate climate—meaning that the net effect of a retirement could be a more moderate court, even with Bush in office.
This is why a Rehnquist retirement would mean so much were Kerry to be elected: With the appointment of a liberal or even a moderate replacement, the 5-4 balance on the court would tip dramatically. The possibility of a Roe reversal would virtually evaporate overnight, as would the likelihood of a sea-change in affirmative-action law. It’s a tough argument to make—smacking of that ugly word, “activism.” John Kerry can’t really mobilize voters by saying Bush would replace a staunch conservative with a staunch conservative. He could score a point by saying this is a rare and precious opportunity to replace a staunch conservative with a moderate. But my guess is he won’t. See “activist” above. And whether Kerry really wants to make a campaign issue out of an old man’s possibly terminal illness is doubtful.
There is another, almost more intriguing (and equally unseemly) question raised by a possible Rehnquist retirement, with the presidential election just a week away: What would happen if the Supreme Court were asked to intervene again on any of the inevitable and innumerable Election Day lawsuits, any of which might ooze its way up to the high court? Would the Bush v. Gore court collapse into an elderly ball of scratching, biting, hair-pulling 4-4 indecision? Bearing in mind that a 4-4 tie would mean affirming whatever decision came up from below, this adds yet more credence to my argument that the Supreme Court will not take another presidential election case this year; not an equal protection fight, not a statutory interpretation fight; not a hanging chad dispute; and not a battle over provisional ballots. But more on this tomorrow.
For now, we wish the chief justice a speedy and full recovery.