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Newspaper reporters and editors ought to stop hectoring Chief Justice William H. Rehnquist for not satisfying their exaggerated demands for every last detail about his cancer treatment. People should afford him some privacy, dignity and respect, even if he is the chief justice of the United States. This much we know. The man has thyroid cancer. He had tracheotomy surgery. He is undergoing radiation and chemotherapy. He stayed home for a while but he kept up with his work. No one on the Supreme Court has broken ranks to complain that the high court’s work is going undone or being done poorly. So far, the docket and the court term pretty much look normal to knowledgeable and informed court watchers. This much we do not know. What is the specific diagnosis-which of the four technical types of thyroid cancer does he have? What is the prognosis-what are the probabilities for successful treatment and full recovery? He and his treating physicians know this information, but they are not telling. No public right to know Invoking the fourth estate’s argument of last resort, the press has complained that the public has a “right to know.” But do we really? We all understand that a doctor’s actual medical prognosis would be carefully and responsibly couched in terms of the type and the stage of the disease and the percentage probabilities of how many patients survive for one or three or five years, given the various treatment protocols that are indicated. There has been extensive press coverage of the available treatments, including detailed medical opinions from expert oncologists. USA Today has published its color graphics of the internal organs of the relevant high official. But even suppose the worst-case scenario-I pray God forbid. There is nothing whatsoever that follows from knowing the particulars beyond slaking our tabloid curiosity. According to the U.S. Constitution, Supreme Court justices serve “during good behaviour,” which effectively means for life, subject only to impeachment by the House and removal by the Senate for “Treason, Bribery, or other high Crimes and Misdemeanors.” A cancer diagnosis is not a ground for impeachment. Three other current justices-justices John Paul Stevens, Sandra Day O’Connor and Ruth Bader Ginsburg-have been treated for cancer and have returned to their official duties for a number of years. A Supreme Court justice’s permanent infirmity-mental or physical-is a subject of valid public concern. Writing in Federalist Paper No. 79, Alexander Hamilton defended the fact that the Constitution does not include a provision to remove judges because of such inabilities: “[A]ll considerate men will be sensible that such a provision would either not be practiced upon or would be more liable to abuse than calculated to answer any good purpose.” Decision is left to the justice There is no judicial provision comparable to the 25th Amendment by which the president or the cabinet can declare the president unable to discharge the duties of the office so that the vice president can act as president. The Constitution thus leaves the decision to retire to the individual Supreme Court justice. Historically, other members of the court occasionally have staged interventions to prod infirm but reluctant justices off the bench. This is done in privacy to afford their infirm colleague some dignity and respect. This tradition and practice has worked well enough for more than 200 years. There is no indication whatsoever that the chief justice is so physically infirm that he is permanently unable to perform his official duties. After announcing his illness, he continued to work at home for a time and participated selectively in deciding cases. His staff has continued in place and he has been in regular communication with them. He issued a comprehensive and timely year-end report on the judiciary that included a spirited defense of judicial independence. He received a standing ovation at the inauguration for the determination and dignity he demonstrated in administering the oath of office to President George W. Bush. Now he has in fact returned part-time to his chambers at the Supreme Court. The Supreme Court once proclaimed, “A responsible press is an undoubtedly desirable goal, but press responsibility is not mandated by the Constitution.” But surely this pronouncement does not mean that the rest of us cannot invoke common decency to criticize the press itself in the exercise of our own First Amendment rights. Chief Justice Rehnquist may fully recover and continue to serve. Or he may reach the point in his present illness when he decides to resign. Supreme Court retirement announcements traditionally come at the end of the court term in June, in part to allow time for a replacement to be nominated and confirmed in time for the next term. Is that too long to wait? When he first became chief justice, I was privileged to serve briefly on his staff. At a schmoozing session with the press, a reporter pointedly asked that the justices be more forthcoming with health and medical information. The chief snapped back, “You people behave like a bunch of vultures!” At the time, I remember thinking to myself that he should not have said it so bluntly. Now, I am saying it for him. Thomas E. Baker is a cancer survivor and professor of law at the Florida International University College of Law in Miami. He served as acting administrative assistant to Chief Justice William H. Rehnquist from September 1986 to January 1987.

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