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Soon after the Supreme Court announced last October that Chief Justice William Rehnquist was suffering from thyroid cancer, the question for many court-watchers changed from whether he would retire this term to when. Now, cautiously, some are beginning to shift back to the “whether” category. Rehnquist’s seeming health rebound, his dogged determination, questions of timing and the elusive “Potter Stewart factor” are all causing many to hedge their bets. “I’m now putting it into the 10 to 15 percent range of likelihood,” says Emory University Law School professor David Garrow, who has written extensively on the health of justices. “A very powerful part of this may be him thinking, ‘I’ll show those death vultures of the media.’” Georgetown University Law Center Professor Peter Rubin, a former clerk to Justice David Souter, has also shifted gears in his thinking: “I kind of doubt he will retire. Having something to get up and go to may be extraordinarily important for him now.” University of Virginia law Professor A.E. Dick Howard is more cautious. “I still think there will be someone new in the center chair” when the Court’s next term begins in October, he says. “But I’m less convinced of that than I was three months ago.” On the bench, Rehnquist’s stamina seems good; though his voice is still impaired by the tracheotomy he received during treatment, he swears in Supreme Court bar members as before, and he verbally summarizes his opinions at some length. Those who have contact with him say Rehnquist is keeping up with his work. He has alerted the 4th U.S. Circuit Court of Appeals that he will not make his regular trip to its judicial conference next week, but that is not much of a surprise. The Court has not provided any medical updates in months. But University of Chicago oncologist Dr. Ezra Cohen, a thyroid cancer specialist who sounded pessimistic last fall, now says, “I would say that his current condition speaks very well about the success of treatment and overall prognosis.” As before, Cohen cautions he has no inside information about Rehnquist’s specific case or treatment. Then, there is the question of timing. Though the final day of the Court term — expected during the week of June 27 — is still viewed as the most likely day for a retirement announcement, the two most recent retirees have given the White House and the public far earlier notice than that. Byron White told the Clinton White House of his plan to retire on March 19, 1993, and it was made public that day. Blackmun announced his plan on April 6 the following year, though he had alerted President Bill Clinton the previous New Year’s Eve. Chief Justice Warren Burger, Rehnquist’s predecessor, told President Ronald Reagan of his plan in May 1986, and Rehnquist’s elevation — and the appointment of Antonin Scalia to replace Rehnquist as associate justice — was publicly announced as a package on June 17. Burger, White and Blackmun appeared mindful that choosing and confirming a replacement could take considerable time, and to minimize disruption of the Court, they wanted their replacements on the bench by the beginning of the following term in October. Those considerations could also weigh heavily for Rehnquist, who knows well the venomous political climate on Capitol Hill. “If he knew he was leaving, he would announce it as soon as possible,” says Garrow. Even if he were awaiting the outcome of the “nuclear option” debate over filibustering judicial nominees, Garrow says, Rehnquist has had a couple of chances since then to announce a retirement, and he hasn’t. So what might be driving Rehnquist’s possible determination to stay on? Apart from the pleasure of defying predictions, Rehnquist may feel that so long as he is able to do the work, he should continue doing it. “If his situation is not that desperate, he may feel, ‘Why leave?’” says David Atkinson, a University of Missouri-Kansas City political science professor, who wrote a 1999 book on the reasons for Supreme Court departures through history. Overall, Atkinson believes health, far more than politics, determines why justices decide to stay or quit. In Rehnquist’s case, the political considerations may be a wash, says Atkinson: “If he knows a conservative will replace him, he may think, ‘What difference does it make? What’s the hurry?’” If he retires, Rehnquist would lose the work he loves and the camaraderie and stimulation of being the leader of the nation’s highest court. And, though justices do not have as many perks as their counterparts in the other branches of government, certain privileges do fall away on retirement — as Rehnquist himself had to remind Thurgood Marshall after Marshall retired in 1991. Marshall had asked if he could make use of one of the pooled, police-driven cars that are available on request to sitting justices for commuting to and from the Court. “I am sympathetic to the request you make in your letter of July 25th,” Rehnquist wrote, “not merely in the abstract, but because in all probability I will be in the same boat you are within a couple of years — but after thinking through the matter I do not believe I can accede to it.” Much more significantly, the retirement and death of the late Justice Potter Stewart may also be part of Rehnquist’s calculus. Stewart left the Court in 1981 at age 66, making way for Justice Sandra Day O’Connor. A year later, Stewart fell at his New Hampshire home, breaking several ribs. That episode began a steady decline in Stewart’s health, and he died in 1985. Justices, including Rehnquist, have privately pointed to Stewart over the years as an example of someone who might not have declined so quickly if he had remained on the Court, with all the mental and physical activity that entails. Stewart’s final years were a consideration when the late Justice Lewis Powell Jr. considered retirement, according to John Jeffries Jr.’s 1994 biography. “Powell often said that Stewart’s retirement hastened his death,” wrote Jeffries. Powell’s son Lewis Powell III, a partner at Hunton & Williams in Richmond, confirmed Jeffries’ account last week and said it was extremely hard in 1987 for his father to decide that it was time to retire. “He felt a very strong duty to stay as long as he could,” said Powell III. “He had deep respect and affection for the Court and his colleagues and very much enjoyed the work. It’s a deeply personal decision for any justice to make, and I sympathize with all of them.”

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