Rehnquist Absent, Court in Political Spotlight

Chief Justice William H. Rehnquist was unable to return to work today as he had planned and instead said in a statement that he has been undergoing radiation and chemotherapy to treat his thyroid cancer.

“My plan to return to the office today was too optimistic,” he said in a statement issued by the court. “At the suggestion of my doctors, (I) am continuing to recuperate at home.”

Rehnquist said he was continuing to work on the court’s business. “I am, and will continue to be, in close contact with my colleagues, my law clerks and members of the Supreme Court staff,” he said.

Justice John Paul Stevens, the 84-year old senior associate justice, presided over the court’s argument sessions this morning.

Despite the business-as-usual theme of Rehnquist’s statement, his treatment for thyroid cancer, coming on the eve of the presidential election, highlights the near certainty that the candidate who wins Tuesday — President George W. Bush or Sen. John F. Kerry — will select the next chief justice.

Prior to his illness, Rehnquist hinted that he planned to retire sometime next year after the newly elected president was in the White House.

But the justice’s cancer appears to have developed quickly. In mid-September, Rehnquist spoke at several gatherings in Washington and seemed unimpaired. By early October, he was hoarse and spoke in a weak voice in the courtroom. During the first week in October, he canceled a planned speech at the University of Nebraska law school and told the dean he was having trouble with his throat and his voice.

When Rehnquist was admitted to Bethesda Naval Hospital on Oct. 22, doctors discovered he had thyroid cancer. But rather than remove the malignant gland, they performed a tracheotomy, which opened a hole in his windpipe.

Other doctors who specialize in treating thyroid cancer said last week this may indicate that the chief justice’s cancer was advanced.

There are four major types of thyroid cancer. Papillary and follicular cancer, which account for as many as 85% of all cases, are considered easily treatable with surgery and radioactive iodine pills.

The prognosis is slightly worse for another form known as medullary cancer, which affects thyroid cells responsible for regulating calcium. That cancer has a greater tendency to spread to the lymphatic system.

The most dangerous form is anaplastic. It accounts for fewer than 5% of cases and mainly affects people older than 70. Those diagnosed with this form often have long histories of thyroid problems.

The court has not released any details about which form of thyroid cancer the chief justice has.

If Rehnquist returns to the bench in the weeks ahead, he could serve until early next year and announce his retirement at the end of the court’s term.

If he is unable to return, the court could operate with eight justices, as it has done on several occasions. However, an eight-member court sometimes finds itself evenly divided and unable to issue a ruling. In those instances, the court issues a short statement, saying that it has affirmed the lower court ruling on a divided vote.

Rehnquist’s illness could create a special difficulty if Tuesday’s election is extremely close and results in litigation to challenge the result. If so, the losing party in a lower court may ask the Supreme Court to intervene, as lawyers for then Texas Gov. Bush did four years ago.

It takes the votes of four justices to take up an appeal, but five to issue a ruling. In 2000, Rehnquist led a 5-4 majority that stopped the recount of untabulated punch card ballots in Florida, a ruling that preserved Bush’s narrow victory.

Times staff writer Michael Muskal contributed to this report.