Ailing Chief Justice William H. Rehnquist will be absent from the bench when the Supreme Court returns for the second half of its term next week, the court announced Friday.
The 80-year-old Rehnquist, battling thyroid cancer, plans to skip the two-week cycle of oral arguments that starts Tuesday, court spokeswoman Kathy Arberg said. He will continue reading transcripts of the arguments and voting on decisions, she said.
Rehnquist has been working mainly from home since Oct. 22, when he was hospitalized and then underwent a tracheotomy to help him breathe. He made his first public appearance last month at the presidential inauguration, appearing fragile as he delivered the oath of office.
Rehnquist’s illness has led to speculation that he will step down, giving the court its first opening since 1994. While such an announcement could come at any time, justices typically wait until the term ends in June to leave to avoid an extended vacancy and the possibility of 4-4 votes on cases.
The court resumes its term with two weeks of arguments featuring contentious issues such as property rights and display of the Ten Commandments in government buildings. Some court watchers had suggested Rehnquist might try to sit for those arguments because he has a special interest in religious freedom and eminent domain cases.
Juvenile death penalty ruling expected soon
One of the earliest major rulings could come next week, in a case that was heard in October while Rehnquist was still on the bench.
The case asks the justices to rule on whether the Constitution allows states to execute juvenile killers, a question that could strike down the practice in 19 states. The court is closely divided on death penalty issues; the question is which side will get the majority in this case..
Other major cases already argued but yet to be decided involve whether the federal government can prosecute people who use marijuana medicinally, the scope of the landmark Title IX gender equity law and whether states can bar interstate wine sales over the Internet.
Justices will hear several arguments this spring on religion and property rights, including a case Tuesday that will decide whether cash-strapped cities may seize people’s homes to make way for economic development projects. The court also will revisit the death penalty in late March when it considers how U.S. authorities should deal with foreign nationals who face charges that could result in execution.
And it will hear a big-money Internet dispute that questions whether file-sharing services should be held responsible when their customers illegally swap songs and movies online.
10 Commandments cases could add to Rehnquist legacy
The emotionally charged Ten Commandments issue will be argued in two cases the court will hear March 2. The question for justices is whether government displays violate the Constitution’s ban on “establishment” of religion.
The cases offer Rehnquist another chance to leave a constitutional mark on the role of religion in public life. Last year, justices punted on whether “under God” should be included in the Pledge of Allegiance, which is recited daily in public schools nationwide. They rejected the case on technical grounds.
“There’s going to be a lot of fireworks here,” said Richard Garnett, a former clerk for Rehnquist who teaches law at the University of Notre Dame. “I’m sure the chief justice would very much like to be able to participate fully in this term’s cases since so many are closely connected to his constitutional legacy, such as religious freedom.”
In the coming weeks, justices will also consider whether to hear the Bush administration’s challenge to Oregon’s unique assisted suicide law, as well as a challenge to the government’s right to put terrorism suspect Zacarias Moussaoui on trial even though he had no access to potentially favorable al-Qaida witnesses.
The Supreme Court also expects to receive soon a government appeal of a lower-court ruling allowing colleges to limit the activities of military recruiters on campus because of the military’s ban on openly gay people.
But if accepted for review, those cases would not be heard until the new term started in October. If Rehnquist does step down as expected, a court divided 5-4 on issues like the death penalty, affirmative action and gay rights could by then have its first new member in more than a decade.