WASHINGTON -- A terse Supreme Court announcement Monday said Chief Justice William Rehnquist has undergone treatment for thyroid cancer.
The statement was so lacking in detail that it is bound to increase speculation that Rehnquist could step down soon, setting off rumors of bonfire proportions in the waning days of the 2004 presidential election.
The court said that Rehnquist, who turned 80 on Oct. 1, was admitted to Bethesda Naval Hospital on Friday "and underwent a tracheotomy on Saturday in connection with a recent diagnosis of thyroid cancer. He is expected to be on the bench when the court reconvenes" next Monday, the day before the election.
A tracheotomy creates a hole in the windpipe through the neck, and is now less an emergency procedure than an elective one to clear the air passage.
The court announcement did not explain whether Rehnquist was hospitalized for a pre-operative examination or whether he actually received treatment.
The implication of the announcement was that he did not receive treatment beyond the tracheotomy.
There also was no mention of whether the cancer had spread beyond the thyroid, a gland that lies at the base of the neck and produces hormones that help regulate the metabolism.
Nor was there any mention of whether the thyroid had been removed or would be removed sometime in the future, or simply whether nodes on the thyroid that proved to be cancerous would be removed. Or whether some alternative treatment, such as chemotherapy, could be used.
Rehnquist's prognosis depends a great deal on whether the cancer has spread, but both court and hospital have been tight-lipped.
Calls to Bethesda Naval Hospital were referred to the Supreme Court, where the Public Information Office said it did not know anything about the chief justice's condition beyond what was released.
A number of court employees who work closely with Rehnquist also said they had no knowledge of what the chief justice was undergoing; all said the first they had heard about Rehnquist's condition was from the court announcement.
The only sign Rehnquist had not been feeling well was a hoarseness in his voice over the last two weeks.
In past years the chief justice has undergone a spinal operation to relieve severe back pain, though some pain persists; and surgery to repair torn ligaments in one knee. Over the last year he has also had to contend with a broken bone in his foot.
A number of reports over the last several years pointed to "inside information" that Rehnquist was about to step down, but each report proved false. Rehnquist himself refused to say, either privately or publicly. It is not known whether he has told the White House about a proposed retirement date.
Many justices serve on the bench well into their 80's.
Within the Supreme Court itself there has been speculation that Rehnquist is aiming to be the longest-serving member in the court's history. The late Justice William O. Douglas served for more than 36 years, from 1939 until 1975. Rehnquist has served 32 years, from 1972 to the present. If he can hang on for just less than five more years, he will have topped Douglas.
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Rehnquist was appointed to the high court by President Richard Nixon in 1972 and was elevated to chief justice by President Ronald Reagan in 1986.
If Rehnquist does step down soon, whoever wins the Nov. 2 presidential election will get the chance to replace him, subject to confirmation by a closely divided Senate.
When running for the top job in 2000, President George W. Bush said he admired Justices Antonin Scalia and Clarence Thomas among the current members of the high court. The two justices are the most conservative members of the court and usually vote in lockstep.
However, neither is considered a realistic replacement for Rehnquist.
Instead of elevating a current court member, a newly re-elected Bush could appoint a respected politician or jurist to replace him. White House counsel Al Gonzales, a former Texas Supreme Court justice and Bush pal, and U.S. Judge Michael Luttig, on the conservative U.S. Court of Appeals for the 4th Circuit, would be expected to be on Bush's short list.
If a putative President John Kerry gets to replace Rehnquist, one of his leading candidates should be current Justice Stephen Breyer.
Breyer is the least liberal of the four liberals on the Supreme Court. Though a native of California, Breyer's ties reach deep into Kerry's Massachusetts.
He is also a protg of Kerry ally Sen. Ted Kennedy, D-Mass., and has extensive contacts on the Senate Judiciary Committee and its staff.
Replacing Rehnquist would be a huge plum for any president. A special reason for Democrats to relish the thought is that the chief justice was part of the five-justice majority in Bush vs. Gore, the 2000 decision that ended the Florida recount and ensured Bush would be president.
In the more than three decades Rehnquist has served on the Supreme Court, however, he has become known as a consistent conservative and the court's most influential supporter of federalism.
As an associate justice in his early years on the court, he defended federalism in dissent. In later years, as chief justice, he either wrote or joined opinions that saw federalism prevail.
Federalism -- the enhancement of the power of the states at the expense of the federal government -- dominates Rehnquist's jurisprudence.
Conservatives see federalism as the perfect antidote to the years of the Warren court in the 1950s and 1960s.
The court under Chief Justice Earl Warren found the authority between the lines of the Constitution to protect the powerless -- the individual, the prisoner, the minority. Federalism relies on a strict interpretation of the Constitution to invest power back to where its proponents believe it belongs -- in statehouses and local communities, in property owners and in private groups that protect U.S. values but sometimes have little use for the non-conformist or the weak.
In contrast to his immediate predecessor, Chief Justice Warren Burger, Rehnquist has been the ultimate leader on the Supreme Court.
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Burger was regarded by many of his colleagues on the high court as a relative intellectual lightweight, someone chosen as chief justice mainly because he looked the part. Rehnquist brought a mental vigor and vital managerial skills to the role.
Rehnquist has also participated in several judgments that seem to blur the line between church and state, including writing the 5-4 majority opinion in Zelman vs. Harris, the landmark ruling allowing publicly financed school vouchers to be used for religious education.
For the most part, the chief justice has been a solid conservative, reliably joining fellow conservatives Scalia and Thomas when it counted, either in majority or in dissent.
In 1997 Rehnquist joined the liberal-moderate-conservative majority that struck down the Religious Freedom Restoration Act -- which purported to prohibit government from placing a "substantial burden" on the exercise of religion -- in City of Boerne vs. Archbishop Flores.
In 2000 he wrote the 6-3 majority opinion that said Congress did not have the authority to reverse the Supreme Court's decision in Miranda vs. Arizona, the landmark 1966 ruling that forces police to advise a suspect of his or her rights before questioning.
Congress had tried to reverse Miranda two years after the ruling by enacting a law that made a prisoner's statements admissible into evidence as long as they were "voluntary," regardless of whether the prisoner had been given a Miranda warning.
In Dickerson vs. United States, Rehnquist led the majority in striking down the federal law as exceeding Congress's power. The chief justice voted in favor of the court's authority over Congress, even though he has consistently opposed Miranda.
Rehnquist's real mark on the court involves the "federalism revolution."
The modern triumph of federalism began with 1995's United States vs. Lopez. In Lopez, Rehnquist wrote the 5-4 opinion that struck down a federal law outlawing firearms within a school zone. The opinion severely limited the modern understanding of congressional power under the Constitution's commerce clause.
The clause gives Congress the sole power to regulate commerce between the states but has been used as the authority for hundreds of federal statutes that on the surface have relatively little to do with commerce. Another blow to federal power fell in 1997's Seminole Tribe vs. Florida. In Seminole, Rehnquist again wrote the 5-4 opinion, this time expanding the modern understanding of the 11th Amendment.
In its plain language, the amendment bans lawsuits against one state by a citizen of another. But in Seminole, Rehnquist explains that the 11th Amendment establishes the sovereignty of the states -- not a new concept. However, he goes on to explain that the amendment limits Congress's power to "abrogate," or override, the states' immunity from lawsuit, unless that abrogation is in the legitimate pursuit of commerce-clause authority or unless Congress is enforcing a basic civil right, as it is allowed to do under Section 5 of the 14th Amendment.
In 1999 the chief justice joined a 5-4 opinion written by moderate Justice Anthony Kennedy in Alden vs. Maine, another landmark federalism ruling that found some of its authority in the Federalist Papers. The Alden decision said that the states retain immunity from suit in their own courts, even if Congress enacts a law that says otherwise, as long as they do not waive that immunity -- though the states are still bound by the obligations of the Constitution and federal laws that "comport with the constitutional design" of the framers.
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Ironically, Rehnquist struck a blow against federalism 2003's Nevada vs. Hibbs.
William Hibbs was an employee of the welfare division of the Nevada Department of Human Resources. He asked for time off under the 1993 Family and Medical Leave Act to take care of his ailing wife. The act entitles most workers to up to 12 weeks unpaid leave to help care for a seriously ill spouse or other close relative.
The state gave Hibbs his 12 weeks off but eventually told him he would have to return to work. When Hibbs failed to do so, he was fired. He then filed suit in federal court under the FMLA. A federal judge ruled that the suit was barred by the 11th Amendment, but a federal appeals court reversed.
In his prevailing opinion, Rehnquist backed the appeals court, saying that state employees may recover money damages in federal court when a state violates the FMLA.
Rehnquist said the basic civil-right dispute in the case involved sex discrimination.
When it was enacting the FMLA, Rehnquist said, Congress considered the "long and extensive history" of sex discrimination.
The Hibbs case had nothing to do with sex discrimination, but the important thing, the chief justice said, was the underpinning of the law.
"By creating an across-the-board, routine employment benefit for all eligible employees," Rehnquist said in his opinion, "Congress sought to ensure that family-care leave would no longer be stigmatized as an inordinate drain on the workplace caused by female employees, and that employers could not evade leave obligations simply by hiring men. By setting a minimum standard of family leave for all eligible employees, irrespective of gender, the FMLA attacks the formerly state-sanctioned stereotype that only women are responsible for family care-giving, thereby reducing employers incentives to engage in discrimination by basing hiring and promotion decisions on stereotypes."
