WASHINGTON, Nov. 1 (UPI) -- Chief Justice William Rehnquist, who has thyroid cancer, did not return to the Supreme Court bench Monday morning, and rightly or wrongly, his absence is sure to fuel speculation that he could step down soon.
In a written statement, Rehnquist said he stayed home at "the suggestion of my doctors." But the Supreme Court remained silent about the chief justice's long-term prognosis.
Most thyroid cancers, if treated early, are considered not life threatening, but the court's reluctance to say just how serious Rehnquist's condition is leaves his continued service up in the air.
Rehnquist's illness and absence comes right before Tuesday's presidential election. Whoever swears the presidential oath of office Jan. 20 (no Senate would confirm the nominee of a lame-duck) may have the opportunity to name one, perhaps several justice nominees and influence a number of social and legal issues that are now decided 5-4 in the closely divided Supreme Court.
There has been no high-court vacancy, and no new justice has been named, for a decade, the longest period of stability on the court since the 1830s.
Following an announcement last week that Rehnquist had thyroid cancer -- the news caught even those who work with him on a daily basis by surprise -- the court said Rehnquist planned to be on the bench Monday.
But in his statement the 80-year-old Rehnquist said, "According to my doctors, my plan to return to the office today was too optimistic."
Rehnquist also revealed for the first time he is "continuing to take radiation and chemotherapy treatments on an outpatient basis."
He spent last week at Bethesda Naval Hospital in the Washington suburbs as doctors checked on the aftermath of a tracheotomy, a hole cut into the chief justice's windpipe to ease his breathing. Rehnquist's breathing had become difficult during his treatment.
He returned home to the Virginia suburbs last Friday.
"While I am home, I am working on court matters," Rehnquist said, "including opinions for cases already argued. I am, and will continue to be, in close contact with my colleagues, my law clerks and members of the Supreme Court staff."
Anyone who thought Rehnquist would give up his seat on the court -- even temporarily -- without a fight would be wrong.
Justice John Paul Stevens, at 84 the most senior associate member of the court, sat beside Rehnquist's empty center chair behind the bench Monday and ran the courtroom through the two scheduled arguments.
However, Stevens made it plain that the chief justice planned to participate as a full court member, even from home.
"The chief justice is unable to be present for the arguments today," Stevens said, "but reserves the right to participate in decisions" through the use of transcripts, recordings and written briefs.
That means for the time being, Rehnquist plans to participate in all court business, including any election disputes that make their way to the Supreme Court. There is even precedent for Rehnquist sitting in his chambers and having the audio of an argument piped in so that he could follow the give and take among the other justices and the lawyers.
Rehnquist did just that when he injured tendons in his knee a couple of years ago.
For the moment, the most critical legal wrangling prior to Election Day appears to be taking place in the battleground of Ohio, which could play a key role in selecting either President George W. Bush or Sen. John Kerry Tuesday.
A federal judge in Cincinnati ruled that challengers from either the Republican or Democratic Party will not be allowed inside polling places Tuesday, despite an Ohio law that allows them access.
The judge said allowing such challengers inside the polling places was unconstitutional because it could hinder voters from casting their ballots. Polls are already monitored by state election judges.
Democrats in the case said the GOP wanted to send poll watchers to minority precincts to intimidate black voters. Republicans said they were just trying to prevent voter fraud.
The latest legal wrangling came after a defeat last week for Republicans, who wanted state election boards to hear challenges to 35,000 new registrations. State GOP officials said some material mailed by the Republican Party to the newly registered voters came back as undeliverable.
The federal judge and eventually a federal appeals court rejected the election board review of each of the 35,000 ballots.
Bush carried Ohio in the 2000 election and would not have won the presidency without it. Some polls suggest, however, that Kerry could win the state if Democrats can get out a high percentage of the minority vote.
Legal battles in the 2000 election centered on Florida, and may yet do this election. But for the moment, Ohio seems to be in the spotlight as a state that could lock in a victory for either candidate.
In 2000, of course, Rehnquist was one of the five justices who voted to end the recount in Florida.
After a hearing, the Supreme Court ruled 5-4 in 2000's Bush vs. Gore that the varying methods of hand recounting in Florida's counties violated the Constitution's guarantee of equal protection under the law.
Rehnquist was not enthusiastic about that opinion, though he signed on to it. He issued a concurring opinion as well, saying an 1892 Supreme Court precedent left it up to state legislatures, not the Florida Supreme Court, to determine how a state chooses its electors in the Electoral College.
Rehnquist's written statement and Stevens's comments from the bench indicate the chief justice will participate in deciding how to answer emergency requests and in deciding whether to issue emergency stays of the lower-court rulings in the last few hours of campaign 2004.
Besides Ohio, the states to watch for legal battles that could affect a close race could come from Florida, Pennsylvania, Colorado, New Mexico and other battlegrounds.
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