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By Root 8499 0

Gore, the chief had failed to command a majority in virtually all the important issues before the Court—affirmative action, gay rights, the death penalty, and, now, the legal implications of the war on terror. Even the so-called federalism revolution had dwindled, if not to insignificance, then to modest evolution. The Lopez case had suggested that the Court really might cut back on the authority of Congress to pass laws under the Commerce Clause; the Court did no such thing. The Constitution in Exile remained in exile. Thanks to Rehnquist, the Court had limited the ability of Congress to pass laws that allowed the states to be sued in federal court—a real achievement, to be sure, but also, in the history of the Supreme Court, an arcane one. Likewise, there had been a real, but also modest, movement to the right on church-state issues. The Court was clearly set in its ways, and on the issues that mattered most to the public, as well as to the justices themselves, Rehnquist’s own views held little sway.

The composition of the Court hadn’t changed, either. It had been ten years since Breyer replaced Blackmun—a decade without a new justice—which amounted to the longest period of stability in the history of the nine-justice Court.

In keeping with the collegial spirit of Rehnquist’s Court, the spouses of the justices held a surprise party on January 23, 2003, to celebrate the new record for the nine. (There were no changes from 1812 to 1823, but the law provided for only seven justices at that time.) In 2004, Stevens was eighty-four, the oldest among them, but he enjoyed robust health and no affinity for the president who would appoint his replacement. Rehnquist, closing in on eighty himself, was the most likely to leave. He had spoken candidly of his belief that justices should hand their seats to the party of the presidents who appointed them, and George W. Bush’s conservative politics reflected his own.

But Rehnquist didn’t want to retire. He was a widower who lived in a small town house in suburban Virginia. His three children were long grown. He liked his job and his colleagues. His health was satisfactory, if not robust. With his trademark directness, Rehnquist would point out the grim truth about retirees from the Supreme Court: all they did was die, usually sooner rather than later. He had come to enjoy the administrative side of the job, and he was good at it. If he had lost some interest in the intricacies of Supreme Court doctrine or come to doubt the importance of each word he left behind in the Court’s archives, the benefits of the job still outweighed the appeal of retirement. The choice came down to being chief justice of the United States or sitting at home by himself. It wasn’t a difficult call.

Besides, Rehnquist had already missed a clear window for Bush to name his successor. By the end of the term in 2004, the presidential campaign was well under way. The Democrats were sure to stall any nomination until after the election, which promised to be close. A traditionalist like Rehnquist would never resign at such a time, unless his health forced his hand. So he retreated, as usual, to his modest summer home in Vermont, where he puttered around, looking for a new book subject. His most recent work, Centennial Crisis, a typically lucid and evenhanded study of the disputed presidential election of 1876—his own Bush v. Gore legacy—had been published in the spring. He returned to Washington in time for his eightieth birthday on October 1, 2004, and to await the beginning of the new term, on the first Monday, three days later.

There was a problem. Rehnquist had a sore throat that he couldn’t shake. The Court heard eleven oral arguments in the first two weeks in October, and by the last one, an immigration case called Clark v. Martinez on October 13, the chief’s voice had faded to a husky rasp almost unrecognizable from the voice in which he had announced the Padilla decision in June. With a three-week break until the next set of arguments, Rehnquist decided to visit a doctor.

The diagnosis did not take long.