SUPREME COURT

Rehnquist's Illness Leads to Speculation About Succession

Chief Justice William H. Rehnquist disclosed in October 2004 that he was suffering from thyroid cancer. The illness caused him to miss several of the Supreme Court's oral arguments during 2004 and 2005 and reduced his position in several cases to the role of "tiebreaker" should the need have arisen. As the Court's October 2004 term neared its end, many speculated as to whether Rehnquist would retire and how his retirement would affect the chemistry of the current Court.

Rehnquist turned 80 years old on October 1, 2004. Only Roger Taney, who served as chief justice until the age of 87 during the late 1800s, has presided over the Court at an older age. Rehnquist sat through the first round of oral arguments before the Court in its October 2004 term. The last of these oral arguments took place on October 13. Rehnquist entered the Bethesda Naval Hospital in Maryland to receive treatment. He underwent a tracheotomy to allow him to breathe more easily, and he was released on October 29.

The timing of the announcement initially caused concern due to the impending presidential election. Rehnquist was one of the five justices who voted in the Court's decision that allowed George W. Bush to emerge as the victor in the 2000 presidential election. Bush v. Gore, 531 U.S. 98, 121 S. Ct. 525, 148 L. Ed. 2d 388 (2000). At the time that Rehnquist's illness became public knowledge, Bush and Senator John Kerry appeared to be in a close race during the 2004 election. Thyroid cancer is largely unpredictable, and many commented that it would be difficult to foresee how long Rehnquist would be absent, or whether he would return at all. Some speculated that the Bush-Kerry election could be so close that the Court could be called upon again to resolve it, and if Rehnquist were unavailable to participate, the Court would only have eight members to consider the case.

Bush won the election in November, but the speculation did not end. The most ideal scenario for succession involves the retirement of a justice at the conclusion of the Court's term in June. This allows the President and the Senate to complete the nomination and confirmation process in time for the Court to have a complete nine-member panel by the next October term. This sort of timing occurred in 1993 and 1994, when justices Byron White and Harry Blackmun retired at the end of those successive terms. Should Rehnquist have been forced to retire during the term, Bush would have had the power to nominate a successor before the end of the 2004 term. If Rehnquist were unable to participate on the Court but did not retire, however, the Court would be left with eight justices, leading to the possibility that the Court would reach 4-4 decisions. In the event of a tie vote, the lower court decision that the Court is reviewing is allowed to stand.

Rehnquist continued to receive radiation and chemotherapy treatments for the remainder of 2004, and he conducted his work at his home in Virginia. In December 2004, the Court announced that Rehnquist, who had not participated in oral arguments during the first two weeks of November, would not vote on those cases that the Court had heard unless it would be necessary to break a tie. He also did not attend the arguments before the Court between November 29 and December 8, but the Court said that he would participate in those cases by relying on the briefs and the transcripts of the oral arguments.

Rehnquist remained absent from the Court in January, but he was able to make his first public appearance since his cancer was announced by presiding over Bush's inauguration on January 20, 2005. Rehnquist used a cane to walk down to the Capitol stage, and he spoke with a clear but raspy voice. He used a scarf to hide the tracheotomy tube in his throat. Rehnquist had reportedly promised Bush that he would preside over the inauguration, though this remained in doubt until shortly before the ceremony.

When the Court reconvened for oral arguments on February 22, Rehnquist was again absent. The Court reiterated that Rehnquist would participate in cases that were heard in December and January and that Rehnquist would rely on briefs and transcripts from those cases to reach his decisions. On March 21, Rehnquist returned to the bench for the first time since October. Although he reportedly looked frail and spoke with a hoarse voice, he ran the Court much like he did prior to his illness. At the conclusion of the arguments on the first day of his return, he received assistance from Justice John Paul Stevens to reach a railing to help him walk. At 85 years of age (as of April 20), Stevens is currently the oldest justice on the Court.

The average age of the current justices is more than 70 years old. In addition to Rehnquist and Stevens, two other justices are older than 70, including Ruth Bader Ginsburg (72) and Sandra Day O'Connor (75). Four justices are in their 60s, including David Souter (65), Stephen Breyer (66), Antonin Scalia (69), and Anthony Kennedy (68). Only Clarence Thomas (56) has not reached 60 years of age.

Many commentators have noted that with Bush's victory in the 2004 election, the president could appoint as many as three new justices during his second term, including a new chief justice. Conservative and liberal organizations often keep close tabs on potential nominees, anticipating a battle over the selection of the justices. Bush's aides have said that the president maintains a list of potential nominees in the event that a vacancy on the Court occurs.

As the Court's term neared its end in May 2005, Rehnquist had not yet made an announcement regarding his retirement. Rehnquist was originally appointed to the Court in 1972 by President Richard M. Nixon. Rehnquist's early battles were with the liberal majority that existed on the Court during the 1970s. As the Court's views became more conservative, Rehnquist became much more persuasive. When Warren Burger retired from the Court, President Ronald Reagan nominated Rehnquist as the new Chief Justice.

The ten-year period during which no new Supreme Court justice has been appointed is the longest in U.S. history. Were Rehnquist to serve on the Court for three more years, he would equal the term of William O. Douglas, who from 1939 through 1975 served the longest term of any justice in history.

Sandra Day O'Connor to Step Down after 24 Years on the Supreme Court

On July 1, 2005, Sandra Day O'Connor announced her resignation from the U.S. Supreme Court. O'Connor became the first female justice of the high court in 1981, when President Ronald Reagan appointed her to fill a vacancy left by Justice Potter Stewart.

O'Connor was a classmate of Chief Justice William Rehnquist at Stanford Law School; he finished first in the class, while she graduated third in the class of 1952. She worked in private practice and as an assistant attorney general in Arizona, and was active in state and local Republican politics. In the early 1970s, she served as majority leader in the Arizona Senate. She became a trial judge in 1974. Five years later, she moved to the appellate bench in Arizona.

After O'Connor announced her resignation, the fight for her seat quickly geared up. A moderate conservative appointee would face a less contentious Senate confirmation battle, but many powerful groups are calling for a staunchly conservative nominee. Abortion will be a key issue.

O'Connor did not give abortion foes the support they had hoped for, although in 1983, she said the three-trimester framework set forth in Roe v. Wade was "on a collision course with itself." In the 1992 case of Planned Parenthood v. Casey, O'Connor voted with four other justices to uphold the "central holding" of Roe. In 2000, she was again the swing vote in Stenberg v. Carhart, where the court voted to strike down a Nebraska law that sought to prohibit "partial birth" abortions. By the time the Supreme Court adjourned in late June 2005, it had agreed to hear two cases involving abortion during its 2005-2006 term.

Both sides of the abortion debate quickly jumped into the fray regarding O'Connor's replacement. The National Organization for Women's website charged that "women's lives [are] on the line" and urged its supporters to save the court. At the NARAL Pro-Choice America website, visitors were urged to send donations and "tell your senators to vote NO on pro-choice nominees." Likewise, visitors to the National Right to Life's were told how to "advertise, lobby and activate the pro-life grass-roots" to confirm President Bush's nominee to the high court.

O'Connor's legacy is as a centrist voter, rather than as the conservative justice that some expected when she was appointed. In many cases, she voted with the majority, but wrote concurring opinions that sought to narrow the holding of the majority opinion. She crafted her opinions carefully to provide herself with flexibility in future cases. As time passed, her centrist vote increasingly aligned her with the court's more liberal justices.

In the aftermath of the 2000 presidential election, O'Connor voted with conservatives Rehnquist, Anthony Kennedy, Clarence Thomas, and Scalia to stop the Florida recount, in Bush v. Gore. O'Connor wrote the majority opinion in the 2003 case, Grutter v. Bollinger. The opinion supported the affirmative action program of the University of Michigan's law-school admissions program. Rehnquist, Thomas, Kennedy, and Scalia dissented in that case. However, in a 1989 case, Richmond v. J.A. Croson Co, O'Connor voted against a set-aside program for minority contractors.

In a 1984 case, Lynch v. Donnelly, O'Connor agreed with her conservative brethren that a city could construct a Nativity scene, but in 2005 in McCreary County v. ACLU, O'Connor voted for the removal of the Ten Commandments from two Kentucky courthouses.