- The Washington Times - Sunday, December 26, 2004


The topic with the most buzz around the Supreme Court this session has nothing to do with the law. It’s the health of Chief Justice William H. Rehnquist, which remains shrouded in mystery as the court hibernates for the holidays.

Chief Justice Rehnquist, 80, is working from home while undergoing treatment for thyroid cancer. Whether he will return to the bench is uncertain. Regardless, the court has a large number of major cases awaiting it in the new year.

A key ruling on the constitutionality of federal sentencing guidelines could be among the first decisions next year. Other issues argued but awaiting rulings include whether juvenile killers should be executed, the scope of the landmark Title IX gender equity law, the extent of government power in detaining immigrants, and whether the government can prosecute people who use marijuana medicinally.

The cases justices will hear include a challenge to government displays of the Ten Commandments, and how U.S. authorities deal with foreign nationals facing charges that could bring the death penalty.

Chief Justice Rehnquist has been absent from the bench since announcing on Oct. 25 he has thyroid cancer. The news, coming one week before the presidential election, stirred speculation that he might step down soon.

The few details released about Chief Justice Rehnquist’s condition have been mixed: He won’t rule on cases heard last month, but plans to participate in the cases argued this month. He works exclusively at home for now, but intends to swear in President Bush on Jan. 20.

“The way the chief justice runs the institution is quite extraordinary, making sure that deadlines are met and keeping the court relatively collegial. I’m sure that’s missed,” said Brett McGurk, a Washington lawyer who clerked for Justice Rehnquist.

Many expected a decision by now on the fate of the 17-year-old federal sentencing guidelines. That case was expedited for review in the summer after courts fell into disarray over whether judges, not juries, may consider factors that add years to sentences.

The tradition-bound court showed a willingness to dive into Internet-age disputes, hearing a challenge to state laws barring interstate wine sales over the Web and agreeing to consider whether file-sharing services may be held responsible when their customers illegally swap songs and movies online.

Justices also will consider early next year whether to hear a challenge to an Oregon law allowing doctors to help terminally ill patients die more quickly, and an appeal questioning the Bush administration’s strategy to hold military trials for terror suspects in Guantanamo Bay, Cuba.

The court on March 2 will hear two cases on the emotionally charged issue of Ten Commandments displays. The question for justices is whether government displays violate the Constitution’s ban on an “establishment” of religion.

The death-penalty cases involving juvenile killers and foreign nationals will spotlight the thinking of Justices Sandra Day O’Connor and Anthony Kennedy, two swing voters.

But until there is clarification on Chief Justice Rehnquist’s health, his status will dominate all other issues at the court. Even if he returns to the bench, the odds are good that 2005 will see the first opening on the court in more than a decade, with Chief Justice Rehnquist and Justice O’Connor leading the list of prospective retirees.



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