Uncertainty as top court reconvenes

WASHINGTON — When the Supreme Court returns from its annual monthlong winter break Monday, it will be entering a period fraught with more uncertainty than the justices have experienced in more than a decade.

The obvious cause: the fragile health of Chief Justice William Rehnquist, ailing with an undisclosed form of thyroid cancer, who has not been seen in the courtroom since the latter half of October.

There is little outward sign that his condition has affected the conduct of business at the court.

"There could be uncertainty and worry inside the building, but just as with the anthrax scare (in 2001) and Bush vs. Gore, the court puts on a professional face and sails on smoothly," said Thomas Goldstein, a Washington lawyer who specializes in litigation before the justices. "It's not like 'the president is missing.' The chief is first among equals, but he is an equal."

Senior associate Justice John Paul Stevens has gotten the hang of running oral arguments in the chief justice's absence. Rehnquist has apparently voted on all orders issued by the court, including hundreds of decisions on whether to grant appeals, known as petitions for certiorari. If he had not, the court would have publicly acknowledged it.

As of Dec. 13, when the court recessed, the justices had agreed to hear only enough cases to fill 10 of the 12 argument hours available in March. Given the usual briefing schedules for parties to Supreme Court cases, this means that one day of argument will be canceled.

But such gaps are not uncommon in the court's recent history because the Rehnquist-led court has generally agreed to hear far fewer cases than previous Supreme Courts.

Entering Friday's closed-door conference, the justices needed to accept 12 new cases during their three January meetings to avoid a similar situation in April. The justices announced Friday that they had accepted nine of those cases in a single day, an unusually high number for this time of year, and they included several minor or technical matters the court might easily have skipped.

But this apparent rush to fill out the argument calendar is also not unprecedented, Goldstein noted, pointing out that the court did something similar two years ago.

The court is also issuing written opinions at a relatively normal pace.