Ailing chief justice should put public interest first


CHICAGO - When the chief justice of the Supreme Court falls gravely ill and is unable to carry out the normal duties of his office, the subject is a matter of serious public concern. And William H. Rehnquist has a message for Americans who would like to know what is going on: Get lost.

The secrecy surrounding his condition makes the Chinese Communist Party look like a model of openness. We haven't been granted a candid appraisal of his prospects or the effects of his treatment. We don't even know exactly what he has.

All we've been told is that he is suffering from thyroid cancer - which happens to come in four varieties, whose usual consequences vary greatly. Experts have said that, based on the tiny droplets of information released by the court's press office, it appears Justice Rehnquist has an aggressive form that is almost always fatal within a year.

The 80-year-old chief justice, who had a tracheotomy in October before starting radiation and chemotherapy treatments, planned to be back on the bench by the first of November. But he had to postpone his return, for reasons that were never specified. He wasn't present for oral arguments in any of the cases heard by the court in November.

As of this week, he is still working from home. On Monday, the court announced he will skip voting in some cases, unless he is needed to break a tie.

That sounds like a reasonable concession to his infirmity, until you consider what it actually means: He will get to cast the deciding vote even though he missed the oral arguments. His condition won't allow him to be one of nine justices in a unanimous decision, but it will let him be a majority of one.

As legal historian David Garrow points out, this solution is the exact opposite of the approach adopted by the court in 1975, after Justice William O. Douglas suffered a stroke. Then, the justices elected to put off any cases in which he might play the pivotal role. They included him only when it didn't matter.

Justice John Paul Stevens, who presides in Justice Rehnquist's absence, portrays the accommodation as no big deal. He says that though the chief justice can't be present to hear lawyers make their case, he "will participate in the decision of cases on the basis of the briefs and the transcripts of the oral arguments."

But if that were an adequate substitute for the real thing, we might expect several members of the court to phone it in on days when they don't feel like fighting traffic. Worse, Justice Rehnquist apparently will vote without taking part in the meetings where the justices hash out their views of each case - which is a bit like a groom skipping the wedding but showing up for the honeymoon.

For Justice Rehnquist to keep voting despite the drain of his disease is an abuse of a public trust. But despite all the checks and balances built into our system, he is unaccountable to anyone, even his fellow justices.

Because federal judges are appointed for life, he can't be prevented from exercising the powers of his office, no matter how incapacitated he may be - except by the drastic remedy of impeachment. Nor can he be forced to disclose anything about his condition.

This episode illustrates a serious drawback to lifetime appointment, which was created to protect judges from political pressure. Justice Rehnquist is in a long line of Supreme Court members who have stayed put when they should have retired.

What can be done? Given the constitutional guarantee of life tenure, Congress can't pass a law forcing justices to step down. So three options come to mind. One is a constitutional amendment mandating retirement at 70 or 75, to head off the infirmities commonly suffered by elderly justices. Another is impeachment - which is normally reserved for serious misconduct, but which could and should be applied to judges whose health seriously compromises their performance. The third is to offer justices a large cash bonus for quitting at a specified age, which might make retirement too good a deal to pass up.

But none of these solutions is any help at the moment, when the court is burdened by a chief justice who is no longer up to the job. Justice Rehnquist ought to put the interests of the public above his own desires. But the public interest doesn't seem to have entered his mind.

Steve Chapman is a columnist for the Chicago Tribune, a Tribune Publishing newspaper. His column appears Tuesdays and Fridays in The Sun.

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