Privacy Paramount For Chief Justice

By Charles Lane
Washington Post Staff Writer
Saturday, July 16, 2005

Chief Justice William H. Rehnquist has had multiple health problems since joining the Supreme Court in 1972 -- from hospitalization for a strained back in 1977 to his current battle with thyroid cancer.

Yet through it all, Rehnquist, 80, has followed a consistent approach in talking about his physical condition through the news media: Less is more.

During his 1986 Senate confirmation hearings for chief justice, Rehnquist, who had been hospitalized in 1982 for withdrawal symptoms related to a reduction in the dosage of his prescription pain medications, said that "so long as I am able to perform my duties, I do not think I have any obligation to give the press a health briefing."

Later in 1986, when a reporter asked him if the court could give out more health data, Rehnquist replied, "You people behave like a bunch of vultures."

Thus, the public has been left to track his current illness through a series of terse news releases -- and the visible signs of cancer's ravages, such as Rehnquist's evident weight loss and his use of a cane.

The question for some court-watchers, however, is whether Rehnquist's long-standing attitude is sustainable, or appropriate, when the court is so deeply involved in key public issues and the future of each of its life-tenured members is a matter of intense public interest.

If Rehnquist retires or dies during the middle of a court term, his votes on rulings not yet announced would be void, creating the risk of 4 to 4 ties. An extended incapacitation could leave the court in limbo, because there is no mechanism for removing a justice short of impeachment.

Noting that Rehnquist recently sent a private letter of thanks to a group of thyroid researchers, Emory University law professor David J. Garrow asked: "If he is willing to write about his medical situation to a small group of elite professionals, why is he not willing to say anything to the real constituents of the Supreme Court of the United States?"

Garrow added that if Rehnquist's intentions all along have been to remain on the court, he could have said so "back in November, and it would have saved us 80 percent of this commentary."

Rehnquist's friends and former aides, however, say that the chief justice is merely defending a legitimate zone of personal privacy -- a zone that was unfairly and, for the chief justice, memorably breached when news of his painkiller withdrawal leaked in 1982.

"There is nothing whatsoever that follows from knowing the particulars beyond slaking our tabloid curiosity," Thomas E. Baker, a law professor at Florida International University who worked for Rehnquist at the court wrote in March in the National Law Journal.

Indeed, say some friends and associates, who asked for anonymity because of the chief justice's sensitivity on the issue, it was probably the news media's efforts to find out more about his health and, by extension, his retirement plans that finally drove Rehnquist to issue a statement Thursday night saying that he plans to stay on the court as long as he is able to do so.

Reporters had staked out his house in Arlington, with camera crews following him to and from an Arlington hospital where he checked in Tuesday night, complaining of a fever.

"The hounding by the media and the constant nature of the issue in the media got beyond the pale, and it was more than he could endure," said Charles N. Cooper, a former Rehnquist law clerk who practices law in Washington.

Rehnquist's approach is not the only model for handling health information. Justice Ruth Bader Ginsburg, for example, disclosed the precise size of a tumor that was removed from her sigmoid colon in 1999, along with the name of the surgeon who removed it and the time and place she first began to have symptoms.

Associates cautioned, however, that Rehnquist's decisions now must be viewed in light of the fact that he is not only a powerful public official but also an 80-year-old widower who has suddenly been confronted with a frightening physical challenge.

Some said his determination to remain on the court may reflect his view, expressed within the circle of his family and friends, that to retire would be like surrendering to the disease.

"This is the best therapy he could have, to wake up and look forward to something every day," said one associate.

© 2005 The Washington Post Company