Washington – The Supreme Court, having already weathered months of uncertainty about Chief Justice William Rehnquist’s health and his ability to remain on the job, now faces a contingency that no one expected: two vacancies with less than a month to go before the opening of the fall term.
Rehnquist served on the court for 33 years and led it as chief for the past 19. Flags flew at half- staff, and court aides were prepared to drape his empty seat in black if a successor hasn’t been confirmed when the court convenes in four weeks.
Members of the public will be allowed to pay their respects when Rehnquist’s body lies in repose at the Supreme Court on Tuesday and Wednesday. Rehnquist, an Army veteran, will be buried in a private ceremony later Wednesday at Arlington National Cemetery after services at St. Matthew’s Cathedral in Washington.
On Sunday, fellow justices said they were as stunned as the rest of the country to learn late Saturday that Rehnquist had died.
Justice Sandra Day O’Connor, who surprised her colleagues July 1 by announcing her intention to retire, called the chief justice’s death “an earthquake for the court.”
Noting that she has made her retirement contingent on the confirmation of a successor, she said she has not yet decided what she might do if the first Monday in October dawns and her seat has not been filled. It would be, she said, a “surprising dilemma.”
Justice David Souter said he was flabbergasted to learn of the chief justice’s death. He said that while Rehnquist had appeared extremely weak when he returned to the bench in March after an absence of more than four months – “and I wondered whether he would be able to finish the term” – his health had appeared to turn around.
“He had an amazing few months” and his decision at the end of the term not to retire had not seemed unreasonable, Souter said from his New Hampshire home.
Souter said there had been an “unconscious anxiety” on the bench throughout the past term, which had been underway only a month when the chief justice was diagnosed with thyroid cancer and began intensive treatment with chemotherapy and radiation.
It was months before the other justices saw him again. Even after he returned to the court, the chief justice did not discuss his condition or prognosis with his colleagues.
Unable to take food or drink orally because of a tracheotomy – a hole in his throat that enabled him to breathe after the cancer impinged on his windpipe – the chief justice would excuse himself from the justices’ communal lunches and morning coffee.
“He was so unobtrusive about it and made it easy for us,” Souter said. “And yet, it was there all the time. It had to weigh on us.”
Now, looking ahead to the term that begins Oct. 3, there is a new source of anxiety.
“You can’t count the cards,” Souter said.
People familiar with Rehnquist’s illness said the 80-year- old chief justice understood the poor prognosis associated with anaplastic thyroid cancer, the most aggressive form of the disease, which he was diagnosed with in October after persistent hoarseness sent him to the doctor. Nearly all patients with it die within a year.
It was the chief justice’s choice to die at home, in the company of his three children, rather than in a hospital. While he was receiving nutrition at the end of his life, all cancer-treatment options had been exhausted.
O’Connor could be in an awkward position if her seat is not filled when the new term opens. Officially, she would still be a Supreme Court justice. But there would be little point in her hearing cases during the opening weeks of the term if she would then be departing by the time the cases were decided.
The court can conduct its business with a quorum of six, but that is hardly desirable.
The last time the court had only seven members was in 1971, after the retirements of Justices Hugo Black and John Marshall Harlan days before the new term began. Chief Justice Warren Burger convened a subcommittee of justices to sort out which cases could be argued before a seven-member court and which were likely to be so contentious that they should be held in abeyance for a full court.
The committee decided that Roe vs. Wade, the abortion case that was then awaiting argument, could be heard as originally scheduled. Seven justices heard the case but decided after several months that it should be reargued and decided by a nine- member court.
Even if one vacancy is filled promptly, the new term is almost certain to open with no more than eight justices, raising the prospect of tie votes. If there is a 4-4 tie, the court has two choices: It can announce the result, which has the effect of affirming the lower court’s opinion without setting a precedent for future cases, or it can restore the case to the calendar for a new argument.
Knight Ridder Newspapers contributed to this report.
Rehnquist service
Repose: Chief Justice William
Rehnquist’s body will lie at the court Tuesday and Wednesday, the Supreme Court announced; the public may pay respects from 10:30 a.m. to 10 p.m. Tuesday and 10 a.m. to noon Wednesday.
Funeral: 2 p.m. Wednesday at St. Matthew’s Cathedral; the Roman Catholic Church allows church use for funerals of non-Catholics such as Rehn quist, who belonged to a Lutheran church.
Burial: Wednesday at Arlington National Cemetery
THE ASSOCIATED PRESS