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Full Court Press: Charles Lane

Justices Too Tightlipped on Their Health?

By Charles Lane
Monday, November 1, 2004; Page A19

Among the many issues raised by the Supreme Court's recent disclosure that Chief Justice William H. Rehnquist has cancer is how much information the court owes the public about the chief justice's health.

The only facts revealed -- that Rehnquist has one of several forms of thyroid cancer and that he received a tracheotomy at Bethesda Naval Hospital before being discharged Friday -- were enough to fuel speculation by medical experts about the 80-year-old's condition but not to settle the most pressing questions about the future of the chief justice, and of the court.

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The court's terseness is consistent with its long tradition of discretion concerning justices' personal lives. With few exceptions -- in 1975, after a crippling stroke, Justice William O. Douglas held a news conference -- health information about the life-tenured members of the court is especially closely guarded.

The tradition was born in the days before the court played a central role in policymaking. But now, when the court has a role in everything from whether race can be considered in college admissions to the outcome of the 2000 presidential election, some are saying that tradition has to change.

"If the chief justice's medical prognosis is indeed such that he may not be able to finish this term, that's something the American people have a right to know, especially where you have dueling doctors speculating about the meaning of a tracheotomy," said David J. Garrow, a Supreme Court historian and professor of law at Emory University.

"If it were [Speaker of the House] Dennis Hastert or [Senate Minority Leader] Tom Daschle, people would say there is an unchallengeable public right to know as much as the public official himself knows," Garrow said.

But others defended the court's approach. They noted the constitutional differences between the judiciary and the other branches of government.

"The court operates according to a different rule," said Michael A. Carvin, a former Reagan administration Justice Department official. "There is no constitutional transition issue like you have with the president. There is no day-to-day, commander-in-chief-type responsibility. You can operate the court on autopilot. You can't operate the presidency that way."

It also is possible that not even the chief justice is certain about his condition.

"In my opinion, he owes the public whatever he gives the public," said Washington lawyer Charles J. Cooper, a former Rehnquist law clerk. "He may still be finding things out himself."

SWINGER: Justice Sandra Day O'Connor's pivotal role on the court, long a matter of conventional wisdom among lawyers, has been confirmed by the latest quantitative methods of political science.

In a forthcoming North Carolina Law Review article, professors Andrew D. Martin, Kevin Quinn and Lee Epstein show not only that O'Connor is the court's "median voter," but also that the 74-year-old has moved steadily to the left in recent years, taking the court with her.

A lot of math is involved, but basically the professors ranked justices on a numerical scale, assigning point values to their ideological leanings as shown through their votes. The higher the number, the more conservative the voting record.

In 2002, the last term covered by the study, Justice Clarence Thomas was the most conservative, with a score of 3.637; Justice John Paul Stevens, at -2.516, was the most liberal. O'Connor's score, 0.247, just a hair to the right of center, represented the court's midpoint. O'Connor's score has gone down steadily, or become more liberal, since 1994. In that year, she was at 0.637.

The study also argues that, but for O'Connor's evolution, the court would not have approved of affirmative action in college admissions, which it did in 2003, by a 5 to 4 vote, with O'Connor writing the majority opinion.

According to their calculations, the political scientists say, "the likelihood of O'Connor providing the key vote to uphold the program was quite small for any term prior to 2001."

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