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The Supreme Court has heard its last argument of the session. Now the question is whether ailing Chief Justice William H. Rehnquist has heard the last argument of his 33-year career on the high court. Rehnquist, 80, has been the focus of retirement speculation since disclosing in October that he had thyroid cancer. He defied the expectations of many — and stopped talk of an imminent retirement — by returning to full-time work after undergoing chemotherapy and radiation. But he remains frail and now that the Court is in the homestretch of its term, speculation about his future is beginning again. Rehnquist has not spoken publicly about his plans, though the sentiment of Court observers is widespread that he will step down and give the Court its first opening since 1994. What is unclear is the timing. “This is a man that thinks in the court’s institutional best interests,” said David J. Garrow, an Emory University law professor and Supreme Court historian. “That points toward making an announcement early enough so the nomination and confirmation process for his successor can be completed so there will be a full bench come October,” when the next Supreme Court term begins. Having only eight justices when the Court reconvenes in the fall runs the risk of 4-4 ties in cases. If that happens, the ruling from a lower court stands. Between now and the end of the term in late June, justices will appear on the bench about once a week to release opinions. They also will decide behind closed doors which cases they will hear in the next term. The last two justices to retire, Byron White and Harry Blackmun, announced their intentions in March and April, respectively, and stayed on until the terms ended. Their timing may have been influenced by the protracted political battle over Robert Bork’s nomination in the late 1980s. Bork eventually was defeated, then President Reagan’s next choice — Douglas Ginsburg — bowed out. Reagan’s third pick, Anthony Kennedy, was confirmed, but because of the previous scuttled nominations, did not get a seat on the Court until midterm. Rehnquist, a widower, is the second oldest chief justice. He has been chief justice for 19 of his 33 years at the high court. His successor will have the opportunity to shape a legal agenda on a Court split 5-4 on the death penalty, affirmative action and gay rights. Because of the stakes and the Court’s lack of turnover, both sides of the political aisle have been making preparations for a long, hard Senate confirmation fight. That is not lost on Rehnquist, said John Yoo, a Justice Department lawyer from 2001 to 2003 who also served as general counsel of the Senate Judiciary Committee. “If you wait until the end of June or early July to announce, you’re effectively giving the political system only about a month-and-a-half to install a replacement,” he said. “The last thing the chief justice would want to do is end his career by creating enormous instability for the courts and the Supreme Court.” Rehnquist is a stickler for keeping the Court on schedule. Some of his former clerks say that could mean a decision comes at the end of the current term. They note the Court is entering its busiest time of the year, with pending decisions in many important cases, including the constitutionality of Ten Commandments displays on government property, use of marijuana for medicinal purposes and whether states can bar interstate wine sales over the Internet. Rehnquist will be concerned with making sure nomination politics do not overshadow or distract justices from the Court’s most important work — issuing rulings. “The chief justice is somebody thinking about the institutional well-being,” said Richard Garnett, a Notre Dame law professor and former Rehnquist clerk. “He would try and make decisions in a way that minimizes burdens on colleagues and minimizes extra stress.” The timing also will depend on Rehnquist’s health. He has not said what form of thyroid cancer he has. During recent oral arguments, Rehnquist’s breathing has appeared labored and his voice sounds a bit raspy and high, the result of a tube inserted after a tracheotomy was performed to aid his breathing. But he has conducted sessions much as he did before his illness: asking questions, occasionally cracking jokes and sternly keeping lawyers on time. Dr. Yosef Krespi, a cancer expert at St. Luke’s-Roosevelt Hospital in New York, is among the medical experts who believe Rehnquist has anaplastic thyroid cancer, an aggressive form that is often fatal within a year of diagnosis. They cite his treatment plan of radiation and the continued use of his tracheotomy tube, which is typically reserved for the most serious cases. “He’s going to have good days and bad days,” said Krespi, who is not involved in Rehnquist’s treatment. “He’s at least physically and mentally capable of working. That means for the moment there is no continuation of tumor growth. But eventually it’ll reappear,” Krespi said. Rehnquist already has law clerks lined up for the 2005-06 term, although they were hired before his diagnosis. Also, his annual mid-June reunion with former clerks still is on. “The chief justice will decide about retirement on his own personal terms,” said Joseph Hoffman, a former clerk and now a law professor at Indiana University. “He will retire when he feels that he can no longer do the job well. Until then, he will continue to do the job and lead the court.” Copyright 2005 Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed.

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