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Chief Justice Absence Could Influence Immediate Court Decisions

November 1, 2004 at 12:00 AM EDT

RAY SUAREZ: When the Supreme Court convened this morning after a two-week break, there was one noticeably empty chair: That of the chief justice. Through a statement released by the court today, Chief Justice Rehnquist announced he was undergoing outpatient radiation and chemotherapy for thyroid cancer, which was first announced last week.

At his doctor’s urging, he decided to delay his originally announced return to the bench today. He’ll continue to work from home on cases and decisions.

For more now on the chief justice and what his absence means for the court, we turn to NewsHour regular Jan Crawford Greenburg, Supreme Court reporter for the Chicago Tribune. Jan, when the galleries started to fill up and the court fired up for the day, did you already know that the chief justice wouldn’t be present?

JAN CRAWFORD GREENBURG: Yes, the chief justice released that statement before court began its session. But when the justices filed out into the courtroom to take their seats on the bench, it was so noticeable that the seat in the middle, the large black leather chair, was empty. And we got no indication today from the statement that chief released how long that black chair will remain empty.

RAY SUAREZ: Well, what did the announcement say, and did it give a date for a return that’s now pushed off into the future?

JAN CRAWFORD GREENBURG: No, he didn’t. He just said that according to his doctors, his plan– and he had hoped to be back to the court today– that his plan to return to the office, as he said, was too optimistic.

And those were his words. And then he said he will continue to work on matters that the court will take up, including opinions from his home, staying in close contact with court personnel, his colleagues, his law clerks, but that he would be recuperating at home. And it gave no time frame.

RAY SUAREZ: You mentioned that noticeably empty black chair. Who is in charge?

JAN CRAWFORD GREENBURG: Well, according to the internal court procedures, the most senior associate justice takes over and presides over the court. That’s Justice John Paul Stevens, who at 84 has been on the court the longest, so he steps forward.

And today he swore in members of the Supreme Court bar. He tells lawyers when their time is up and when it’s time for the other side to take the podium. So he will run things from the bench in the chief’s absence, as he has done in the past. Now, the chief missed a couple weeks of arguments in December of 2002 when he hurt his leg, and Justice Stevens stepped in and took over at that point.

RAY SUAREZ: Did Justice Stevens have anything to say today about the Rehnquist absence?

JAN CRAWFORD GREENBURG: He did, but very briefly. He just noted that the chief was absent. He didn’t say why. And he said that the chief reserved the right to participate in the cases that were being argued today and presumably in the future, that he could look at briefs and have a transcript of the arguments so he therefore could participate in these cases.

RAY SUAREZ: Now, if the members of… the leaders of the other branches of the federal government, if Speaker Hastert or President Bush were sick, we’d get very detailed briefings and a lot of information about what was wrong with them, their course of treatment. Is this kind of very little information being given out about the chief justice a typical thing?

JAN CRAWFORD GREENBURG: Well, the court generally keeps many details to itself. Now, of course, this is up to the individual justice, and the chief justice has disclosed the details that he at this point feels comfortable disclosing.

For example, today the news that he was undergoing radiation and chemotherapy treatments, that was something that we had not known before. When we learned last Monday that he was being treated for thyroid cancer, there was a lot of speculation about what kind of cancer he had.

Now, of course, thyroid cancer is very easily treatable if it’s a specific kind. There are also very aggressive forms of the disease.

So the treatment that he’s undergoing today, an endocrinologist that I spoke with at the University of Chicago said that that treatment indicates that he may have the more aggressive form of the disease, the kind that would not respond to surgery and radioactive iodine treatment.

But we don’t know that. We only know that he has thyroid cancer, he’s being treated for it this way. He’s not back on the bench, and we don’t know when he’s going to return.

RAY SUAREZ: Well, let’s talk about the near term. They announced that he’ll be monitoring the arguments and reviewing the documents. Can an absent justice vote on decisions when they haven’t heard the argument?

JAN CRAWFORD GREENBURG: Oh, absolutely, because they have transcripts and they can actually listen to the arguments if they prefer that. They can read about them if they want. But let’s keep in mind, I mean, the oral arguments are a very small part of what the court… and the materials that the court has about a case.

They’ve got a voluminous amount of information in briefs and the lower court opinions, and then of course the transcripts. So he has a lot of information to get through. He’ll be able to participate fully in the decision of these cases, as long as he feels physically able.

RAY SUAREZ: What if a justice’s condition declines to the point where they may not necessarily be able to keep up with the casework? What happens when there are 4-4 decisions? Can you have a tie vote in the Supreme Court?

JAN CRAWFORD GREENBURG: Yes, you can. Of course, there’s precedent for that, too. And if the chief or any other justice at this point were forced to step down, as you know, this court is very closely divided on these controversial and contentious issues– race, religion– that it could be 4-4 without the chief’s vote.

In that case, the lower court opinion would stand. So we say it would be… the lower court opinion would stand. There would be no majority opinion for the court.

RAY SUAREZ: Now, this session of the court — arguments were heard today without the chief — comes the day before a national election day. Certainly nobody needs to be reminded that the Supreme Court played a key role the last time. How do those two parallel calendars mesh, that of the Supreme Court and that of the national election?

JAN CRAWFORD GREENBURG: Well, of course the timing is dramatic. It injects the court in many ways and in the announcement last Monday back into this presidential campaign. The court had not gotten as much attention this time as it had four years ago.

And it’s a reminder that the justices on this court are aging. They’re getting older and that it’s very likely that the next president will get at least one appointment, possibly two or possibly three. Four justices on this court are aged 70 and older. This court is aging. It’s been together, this current membership, since 1994. No one would have believed four years ago that President Bush would not get a nomination in his first term in office.

So the chances of retirement in the next administration are significant. The chief’s announcement does not change that. I mean, we knew before we learned he had cancer that it’s a significant likelihood we’ll have a retirement in the next four years, but this reminds us that they’re getting older.

RAY SUAREZ: But if the chief justice’s condition worsens considerably, and let’s say for argument’s sake President Bush loses, could he appoint the next chief justice of the Supreme Court?

JAN CRAWFORD GREENBURG: I guess constitutionally he could appoint a justice – it’s a recess appointment, and that justice could serve until the end of the next Congress, but that’s I think highly improbable that he would do that.

Certainly there have been recess appointments made to the Supreme Court — 12 in the Supreme Court’s history — but none since the 1950s. And Congress does not like, for obvious reasons, recess appointments. So I think that that’s highly unlikely that we would see any kind of recess appointment in the next month or two.

RAY SUAREZ: But Jan, really briefly, it’s really up to the justice himself or herself when it’s time for them to go.

JAN CRAWFORD GREENBURG: Oh, absolutely. Many people say that when a justice is going to step down or whether a justice is going to step down is one of the few closely held secrets that Washington still has.

RAY SUAREZ: Jan Crawford Greenburg, good to talk to you.