Is Rehnquist too secretive?

Is Rehnquist too secretive?

Is Rehnquist too secretive?

The law, lawyers, and the court.
Dec. 15 2004 5:39 PM

Ain't Nobody's Business If I Do

Does William Rehnquist have a right to keep his medical condition a secret?

Keeping too much to himself?
Keeping too much to himself?

Chief Justice William H. Rehnquist's most recent public statement about his current work arrangements reads like something of a koan: The Supreme Court announced Monday that the chief will not take part in deciding the 12 cases argued in November. Unless the other justices are deadlocked 4-4, in which case he will vote. Rehnquist will vote, however, in the 12 December cases—for which he also missed oral argument—"regardless of the vote." The December cases are no more or less important than the November ones, so this decision clarifies precisely nothing.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

The 80-year-old Rehnquist also just announced that he plans to swear in President Bush on Jan. 20. And court junkies are waiting with bated breath to hear whether he will attend his much-beloved court Christmas party this weekend.

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Stay tuned as more inscrutable tea leaves are offered the public in January. 

This latest baffling announcement, as was true of his earlier ones, led to mostly matter-of-fact media reports. Their substance: Rehnquist has undergone a tracheotomy, radiation, and chemotherapy for thyroid cancer, and many physicians have speculated that such an aggressive protocol suggests he suffers from a very serious form of anaplastic cancer. The chief justice has neither confirmed nor denied.

A brave handful of court watchers have ventured to speculate in print what these most recent terse details could signal about the state of Rehnquist's health. Supreme Court superlawyer Thomas Goldstein recently hazarded the opinion that the chief's acceptance of Bush's invitation to administer the oath, coupled with his decision to vote in December's cases, was "doubly a good sign" that the worst of his thyroid cancer treatments ended in November. But David Garrow, of Emory University, suggested this week's news should be read as an "acknowledgment that his mental ability to focus or concentrate has slipped, and he has to husband his strength for when it really counts."

Strikingly absent from virtually every news account of the chief's attempts to accommodate his work and his illness is any judgment on whether this arrangement can or should be allowed to go on indefinitely. The chief and the court have been sphinxlike, offering few details of his illness, prognosis, or any long-term plans. The unspoken consensus is that this is his right.

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The public and the media accept almost completely the notion that the zone of privacy surrounding Supreme Court justices is nearly infinite, that it encompasses not just their personal lives but also their ability to fulfill their public responsibilities. There are good arguments to be made that it's no one's business how Rehnquist works from home. Linda Greenhouse pointed out last month, for instance, that "while the president embodies one entire branch of government, the chief justice merely heads another" and that Rehnquist's telecommuting arrangement might reasonably continue almost indefinitely, with Justice John Paul Stevens replacing him in courtroom sessions and private conferences while the chief can instruct his administrative assistant, Sally Rider, in carrying out his administrative duties over the phone.

But there are counterarguments—arguments suggesting that the current situation undermines the court's ability to dispense the best possible justice. The notion that even giving voice to these thoughts violates the privacy of a seriously ill old man is emblematic of the real problem: The sense that the right to judicial secrecy is so inviolate that any inquiry, even about a justice's public role, is insolent. While there is an agreed-upon national right to scrutinize every last sperm on Monica Lewinsky's blue Gap dress, there is no corresponding right to know whether the chief justice of the U.S. Supreme Court is sick, very sick, or deathly sick.

I confess right now that I have argued both sides of this judicial privacy issue: I was affronted by Justice Scalia's decision to hunt waterfowl with Dick Cheney while Cheney's case was pending before the court. But I applauded his decision not to be bullied into recusal. I have condemned the court's stupid rules about audio broadcast and the justices' secretive public speaking schedules. But I am appalled by recent interest group efforts to force judges seeking election to fill out "questionnaires" about their religious or ideological beliefs. If a principled line can be drawn here, it should be that judges' public lives ought to be open to public scrutiny, and their private lives should be let alone. I recognize that such a line is dotted at the best of times, but it's a start.

So let's agree that no one was entitled to the medical details when the chief justice's wife was seriously ill. But is there any compelling reason for the public to know whether, and how effectively, the chief justice is performing his duties?

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The court is so secretive in the first place that in some sense it's impossible to know how much Rehnquist's absence is affecting the court's decision-making. Is he participating in case conferences? How? Is he reading the transcripts of oral arguments in the cases he does decide?

Even if we bracket these unanswerable queries, the little we do know about Rehnquist's current participation does raise at least a few questions about whether the court is operating at its best: What, for instance, does it mean that Rehnquist will only vote in the 4-4 cases heard in November? What does it say about the legal significance of oral argument that he is willing to decide a substantial proportion of the court's docket without participating? (The nonbinding tradition on the court is that justices can, but often don't, decide cases they did not hear.)

The short answer to all these questions may simply be that Rehnquist doesn't know, that he wants to wait and see how his treatment goes before making any decisions. Completely fair. But if that is the answer, what possible harm is there in his saying so?

Recent polls show that the majority of the American public supports the idea of mandatory retirement for judges with life tenure. I disagree. Lifetime appointments should mean just that. But one of the reasonable concerns reflected in those polls is that there is no public check on whether judges with lifetime appointments are doing an adequate job. And the unreasonable secrecy surrounding the federal judiciary only exacerbates that fear. There is a hard way to assuage these fears and an easy way. The hard way is to enact arbitrary term limits. The easy way is to ask judges to be more forthcoming when matters of public, and not merely private, concern are at issue.

It may well be that there is no compelling reason for the public to be told about the status of Chief Justice Rehnquist's health and future plans. And I offer once again my own hopes that such a debate is purely academic and that Rehnquist will stay on the bench for years. But it's hard to believe this issue is either too trivial or too sacred to warrant a national conversation.