WASHINGTON – The biggest news to come out of the Supreme Court so far this session has nothing to do with the law. It's the health of Chief Justice William H. Rehnquist (search), which remains shrouded in mystery as the court hibernates for the holidays.
Rehnquist, 80, is working from home while undergoing treatment for thyroid cancer. Whether he ever returns to the bench is uncertain. But with or without Rehnquist the court has a large number of major cases awaiting it in the new year.
A key ruling on the constitutionality of federal sentencing guidelines could be among the first decisions in 2005. Other issues already argued but awaiting rulings include whether juvenile killers should be executed, the scope of the landmark Title IX (search) gender equity law, the extent of government power in detaining immigrants and whether the government can prosecute people who use marijuana medicinally.
And among the cases justices will hear include a challenge to government displays of the Ten Commandments and how U.S. authorities deal with foreign nationals facing charges that could bring the death penalty.
Justices punted on a number of election cases, kicking back to a lower court a hotly contested Texas redistricting plan that drew Republican-friendly congressional boundaries, and refusing to consider voting rights for felons despite a clear split in the lower courts.
Rehnquist has been absent from the bench since announcing on Oct. 25 he has thyroid cancer. The news, coming one week before the presidential election, stirred frenzied speculation that he might soon step down.
The few details released about Rehnquist's condition have been mixed: He won't rule on cases heard in November, but plans to participate in the cases argued in December. He works exclusively at home for now, but intends to swear in President Bush on Jan. 20.
"The way the chief justice runs the institution is quite extraordinary, making sure that deadlines are met and keeping the court relatively collegial. I'm sure that's missed," said Brett McGurk, a Washington attorney who clerked for Rehnquist.
Indeed, many expected a decision by now on the fate of the 17-year-old federal sentencing guidelines. That case was expedited for review last summer after courts fell into disarray over whether judges, not juries, may consider factors that add years to sentences.
Justices also are behind in granting new cases, and would have to accept a bountiful 15 petitions next month to avoid an extraordinary cutback to the court's argument schedule in March and April.
It wasn't supposed to be this way. When the court opened its term in October, the nine justices returned for an 11th session together — the longest stretch since 1812-1823. The buzz was about prospects for another Bush v. Gore-like election dispute and a possible retirement at the end of the term.
Rehnquist's illness and Bush's clear-cut victory changed that.
"The court was not happy to get drawn into the dispute four years ago, and certainly the political process hates losing control over an outcome of an election," said Dennis Hutchinson, a Supreme Court expert at the University of Chicago Law School. "Justices weren't looking for a repeat."
The tradition-bound court showed a willingness to dive into Internet age disputes, hearing a challenge to state laws barring interstate wine sales over the Web and agreeing to consider whether file-sharing services may be held responsible when their customers illegally swap songs and movies online.
Justices also will consider early next year whether to hear a challenge to an Oregon law allowing doctors to help terminally ill patients die more quickly, and an appeal questioning the Bush administration's strategy to hold military trials for terror suspects in Guantanamo Bay, Cuba.
Perhaps the most emotionally charged issue is the Ten Commandments, in two cases the court will hear March 2. The question for justices is whether government displays violate the Constitution's ban on an "establishment" of religion, raising a potent political question not seen since last term's showdown over use of the word God in the Pledge of the Allegiance (search).
The death penalty cases involving juvenile killers and foreign nationals will spotlight the thinking of Justices Sandra Day O'Connor and Anthony Kennedy, two conservative swing voters.
But until there's clarification on Rehnquist's health, that issue will dominate all others at the court. And even if he returns to the bench, the odds are good that 2005 will see the first opening on the court in more than a decade, with Rehnquist and O'Connor leading the list of prospective retirees.