The announcement Monday that Chief Justice William Rehnquist had been hospitalized for treatment of thyroid cancer is one of those 11th-hour events that has the potential to tip the presidential election to one candidate or the other.
The impact is not as clear as a scandal or a gaffe, but Rehnquist’s illness will powerfully focus the minds of activists in Washington and perhaps some voters in the battleground states on the great likelihood that there will be one or two vacancies on the Supreme Court during the next president’s term.
Court watchers already knew that, of course, but Rehnquist’s illness makes it personal and sounds like an alarm clock for those who may have overslept.
For highly motivated partisans on both sides, do they really need another motivator to get them to the polls? Not likely, but if they did, now they’ve got one.
Worry about high court vacancies is rife on both the left and the right. Christian Broadcasting Network founder Pat Robertson happens to have just published a new book that sounds a warning: "Courting Disaster: How the Supreme Court is Usurping the Power of Congress and the People."
Court vacancies, if not Rehnquist specifically, were also on Bush’s mind as he spoke in Greeley, Colo., Monday morning.
“I’ll name judges who know the difference between personal opinion and the strict interpretation of the law,” Bush told a cheering crowd.
From the opposing side, Nan Aron, President of the Alliance for Justice, a liberal group that has organized opposition to several of Bush’s federal court nominees, told MSNBC.com Monday after hearing word of Rehnquist’s illness that “we certainly hope he has a speedy recovery.”
Aron added, “This certainly does highlight the stakes in this election. It obviously increases the likelihood of an appointment to the Supreme Court.”
Aron’s assessment of the Bush-Kerry crossfire on Supreme Court appointments during their third debate: “George Bush stated quite clearly he would look for judges opposed to the right of a woman to choose. Kerry did the opposite: Kerry will appoint judges who are pro-choice.”
Kerry promised last year that if elected president he would nominate to the high court only supporters of abortion rights under the 1973 Roe vs. Wade decision, although he denied that he was using an ideological litmus test.
There has not been a vacancy on the Supreme Court since 1994 and if Bush loses the election next Tuesday he will become the only president other than Jimmy Carter to be elected to a full four-year tem and not get the opportunity to appoint a justice.
A vacancy on the court, whether it is Rehnquist's seat or another one, would likely mean the president who is sworn in next Jan. 20 would have much of his first six months in office dominated by a fierce struggle over Senate confirmation of a new justice.
Effect of a Rehnquist exit
Although it is premature to say whether Rehnquist’s illness will soon lead to his retirement from the bench, a Rehnquist departure from the court would leave a gap in conservative ranks, because the chief is the one who assigns opinion writing to his fellow justices when he votes in the majority and, because when the court is divided 5-4 on some high-profile issues, a single justice can turn the court’s rulings in a new direction.
In a 2000 case called Stenberg vs. Carhart, for instance, a five-justice majority struck down Nebraska’s statute outlawing the procedure known as partial-birth abortion. Rehnquist was one of the four dissenters in that case. If one of the court's liberal wing were to retire, that decision might be reversed. But if Rehnquist were to step down and be replaced by a liberal-leaning justice, it would likely cement the place of Stenberg vs. Carhart.
The one-time Arizona lawyer and Nixon Justice Department official has also been a legal pioneer. He “has been enormously influential in curbing, if not reversing, the Court's pro-criminal defendant rulings of the 1960s, in establishing state sovereignty decisions, and in questioning the scope of Congress's enumerated powers, for example, invalidating substantial portions of the 1994 Violence Against Women Act," said Dennis Hutchinson, a law professor at the University of Chicago Law School.
Rehnquist's most important decision came in 1995 in a case called United States vs. Lopez.
Rehnquist said Congress could not use the Constitution's Commerce Clause, giving Congress power to regulate interstate commerce, as the basis for a 1990 law that made it a federal offense to possess a firearm within 1,000 feet of a school.
Lopez was a landmark decision because it reversed a trend stretching back to the 1930s in which the Supreme Court had allowed Congress ever greater leeway in stretching the Commerce Clause to justify new federal powers.
Rehnquist was the chief adviser to Attorney General John Mitchell under President Nixon, who nominated him to be an associate justice of the Supreme Court in 1971. President Reagan nominated him to serve as chief justice in 1986.