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Rehnquist Won't Vote in Every Case Heard This Term

By Charles Lane
Washington Post Staff Writer
Tuesday, December 14, 2004; Page A08

Chief Justice William H. Rehnquist, ill with thyroid cancer, will not vote in every case that has been argued this term, and will instead participate in certain cases only when necessary to prevent a tie vote, the Supreme Court announced yesterday.

Rehnquist, 80, will be strictly a tie-breaker in the 12 cases that were argued during the first two weeks of November, none of which he could attend, Supreme Court spokeswoman Kathy Arberg said.

Chief Justice William H. Rehnquist is ill with thyroid cancer.

Arberg added, however, that Rehnquist "is going to participate" in 12 cases the court heard during its subsequent two-week sitting, between Nov. 29 and Dec. 8. Rehnquist also missed those arguments.

He participated in the 10 cases argued during October, including two in which he wrote the opinion for the court.

The announcement was the first public indication that Rehnquist's illness has prevented the court from conducting business as usual -- that it has had one member who, at least for a while, has been unable to carry out his most important duty. He is receiving both chemotherapy and radiation treatments.

Rehnquist's condition has been the focus of intense speculation since he announced Oct. 25 that he had undergone a tracheotomy in connection with a diagnosis of thyroid cancer. If Rehnquist died or were forced to retire because of ill health, it would give President Bush the chance to nominate the first new Supreme Court justice in more than a decade, possibly triggering a major political battle between Republicans and Democrats.

The court has been tight-lipped about Rehnquist's condition, and Arberg declined to comment yesterday on the precise reasons for the chief justice's decision.

While presiding over oral arguments in the chief justice's absence, John Paul Stevens, the senior associate justice, had said that Rehnquist "will participate in the decision of the cases on the basis of the briefs and the transcripts of the oral arguments."

In that sense, this is the second time that Rehnquist has had to retreat from an optimistic assessment of his ability to work. The first came on Nov. 1, when he was obliged to stay home rather than attend oral argument, as he had promised in an Oct. 25 written statement disclosing his diagnosis.

Rehnquist did not vote in either of the court's two unanimous rulings yesterday in cases that were argued in November. In one case, the court reversed a Florida Supreme Court ruling that had overturned a death row inmate's death sentence; in the other, it rejected the claim of a Washington state man that he had been wrongly arrested.

The court also issued a ruling, written by Rehnquist, in a case from early October, reversing a lower federal appeals court's decision on a technical issue involving double jeopardy in criminal cases.

Supreme Court analysts differed as to whether yesterday's announcement was a hopeful indicator of Rehnquist's staying power.

Noting that Rehnquist said he would vote in the December cases, and that he last week accepted Bush's invitation to administer the presidential oath of office on Jan. 20, lawyer Thomas C. Goldstein said that it was "doubly a good sign."

"I took it to mean that in November he was maybe getting the most aggressive treatment," Goldstein said.

But David J. Garrow, a professor of law at Emory University, sounded a more pessimistic note. "Should [it] be read as an acknowledgment that his mental ability to focus or concentrate has slipped, and he has to husband his strength for when it really counts?" he said.

Garrow said the chief justice's decision was "very puzzling," given that the bulk of his work involves not argued cases, but decisions on hundreds of appeal petitions each week. When justices do not vote on these petitions, their non-participation is noted on the court's list of orders. There has been no such notation for Rehnquist.

Rehnquist's approach appears unprecedented in court history -- in part because no two illnesses, and no two justices, are exactly alike.

Thurgood Marshall stayed on the court for several years while in declining health at an old age. William J. Brennan Jr. retired at age 84 after suffering a sudden stroke. Yet each eventually retired when the court was not sitting.

Justice William O. Douglas, however, insisted on staying in office for months after suffering a devastating stroke on Dec. 31, 1974. His mental and physical deterioration was such that the eight other justices at the time -- including Rehnquist -- voted not to count Douglas's vote if it would decide a case.

But the approach adopted by Rehnquist while undergoing cancer treatment, Garrow said, "is the reverse of the William O. Douglas scenario. In this case, you only vote when it counts, as opposed to only voting when it doesn't count."

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