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To the outside world, Chief Justice William Rehnquist’s opinion for a unanimous Supreme Court in Leocal v. Ashcroft, issued Nov. 9, was a reassuring sign that, in spite of his serious illness, he is still able to perform his duties. But inside the marble halls of the Court, reassurance came in a different, more poignant form: Rehnquist’s letter inviting employees to the annual Court Christmas party on Dec. 17. “Bring your best singing voices,” read the note, which closed with Rehnquist’s distinctive signature. It is not at all certain that Rehnquist himself will be able to attend the party he prizes, or sing the carols he wants employees to enjoy as much as he does. But the note was one of several indications last week that the direst of the stories about Rehnquist’s battle with thyroid cancer were at least premature, if not also overblown. Court officials and Rehnquist’s circle of former clerks have been tight-lipped about Rehnquist’s condition, a reflexive stance that has given sustenance to many of the worst rumors. But from numerous sources it appears that Rehnquist is neither bed-ridden nor unable to speak — something that was feared because of his tracheotomy. The 80-year-old chief justice has received visits from friends, including some former clerks, and one says “he is glad to receive them” at his Arlington, Va., home. Rehnquist is in frequent contact — including verbal communication — with his administrative assistant, Sally Rider, and his secretary, Janet Tramonte. The cumulative effect of these indications is to soften the likelihood that Rehnquist is leaving imminently, or that a recess appointment will be needed to replace him. The next big indicator of Rehnquist’s health and future, one Court official says, will come Nov. 29, when the next two-week cycle of oral arguments begins. If Rehnquist is unable to attend those arguments, that may signal whether he can ever return to the bench. But for now, the business of the Court and of the chief justice is continuing in spite of his absence from the building and his schedule of chemotherapy and radiation treatments. Leocal was a typical Rehnquist opinion — a terse and speedily written 11-page treatise. “Nothing different from 30 years of his trying to get things off his desk and out the door,” says H. Bartow Farr III, a 1973 Rehnquist clerk, now with D.C.’s Farr & Taranto. The immigration case was argued Oct. 12, just days before medical tests turned Rehnquist’s life upside down. Typically, a law clerk writes Rehnquist’s first drafts, which Rehnquist then uses as the basis for a brief period of revision. That appears to be how Leocal was written. “He is such an efficient writer. He has that job down to a T,” says a more recent former clerk, who declined to be named. At the beginning of every Court session since Rehnquist’s illness, presiding Justice John Paul Stevens has said without equivocation that Rehnquist “will participate” in cases argued that day by reading briefs and argument transcripts. That is a daunting goal since justices meet on Wednesdays to take initial votes on cases they heard that Monday, and at Friday conferences they vote on cases heard Tuesday and Wednesday. Court officials would not detail how Rehnquist is able to keep to that schedule, but one suggested that in these extraordinary circumstances, transcripts could be prepared and sent to the chief justice on the same day of the argument, rather than the usual seven-day turnaround. If that is the case, Rehnquist’s votes — and even opinion assignments — could be conveyed by Justice Stevens to the conference, which no one but justices attend. But the chief justice’s duties go beyond opinion writing, and there, too, indications are that Rehnquist is keeping up. Officials of several outside agencies with business before the Court say they are able to put questions to the chief justice through Rider and receive Rehnquist’s replies from her or Tramonte within hours. One Court insider likened the procedure to the way in which Rehnquist is contacted during the summer recess when he is at his Vermont home. Rider has declined to talk about the Court’s operations in Rehnquist’s absence. “The business of the Judicial Conference with the chief justice is ongoing,” says Carolyn Dineen King, a judge on the 5th U.S. Circuit Court of Appeals. King chairs the executive committee of the Judicial Conference, the judiciary’s policy-making body headed by the chief justice. She says Leonidas Ralph Mecham, director of the Administrative Office of the U.S. Courts, has been able to “send things over” to the Court and get the answers from Rehnquist he was seeking. The conference has been on “pins and needles” about congressional action on the judiciary’s budget, says King, and Rehnquist is up-to-date on the issue. “I have enormous respect for him, and a lot of affection,” says King, adding that news of Rehnquist’s illness, first announced Oct. 25, hit her “like a personal loss. It’s very sad.” That has also been the reaction of Rehnquist’s tight circle of former law clerks. Several spoke of the last time they saw him, at a surprise birthday party at the Monocle restaurant in D.C. in late September, just before he turned 80. “Or at least he pretended to be surprised,” says one clerk who was there. “He seemed very happy and doing fine.” Another clerk who was there says, “With no vacancies in the last 10 years, we were lulled into believing that he and the others are ageless. That was wrong, of course, but we did not realize it until we heard the news about the chief.” Universally, Rehnquist’s friends and former clerks say he will know when he has reached the point when he should depart. Rehnquist, several noted, is the only current justice who was on the Court during the painful decline of the late Justice William O. Douglas before his retirement in November 1975. As an associate justice, Rehnquist was one of eight justices who signed a letter to Douglas a month later sternly repelling his effort to continue participating in the work of the Court. Speaking of Rehnquist, one former clerk says, “He has a great sense of duty to the Court and will not stay a moment longer than he should. But he is not there yet by any means.”

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