This means Reinquist is done.
washingtonpost.com
Rehnquist's Health and Vote Contingencies
By Charles Lane
Monday, January 3, 2005; Page A11
Chief Justice William H. Rehnquist, undergoing treatment for thyroid cancer, has announced that he will not vote in the 12 cases the court heard during the first two weeks of November, unless the case would end up in a 4 to 4 tie without his participation.
But this raises a question: What happens if Rehnquist's fragile health deteriorates so much that he either dies or chooses to step down after he cast a vote at conference but before the court announced its ruling?
The court has no written rule to cover the contingency, according to legal analysts who specialize in the court's internal procedures.
But the likeliest answer, these analysts said, is that Rehnquist's vote at conference would not count.
This is because, until the court's decision is actually announced, votes on cases at conference are formally considered tentative. Indeed, every published opinion carries a notation indicating that a case was "decided on" the day the court announced it -- not the day the justices first voted on it at conference.
"Until the case is filed, there's no ruling," said Richard J. Lazarus, a professor of law and director of the Supreme Court Institute at Georgetown University.
If Rehnquist's were the deciding vote in a 5 to 4 case, the result would revert to 4 to 4, Lazarus said.
At that point, the justices would have two choices: They could announce the 4 to 4 tie, which would affirm the lower court's ruling, without creating a legal precedent.
Or they could simply order the rehearing of the case, without announcing the vote at conference or giving any reason at all. That would enable the court to keep its surviving members' positions on the case confidential -- albeit at the cost of having to redo the case with a new ninth justice on the bench.
"There is no stated rule as to do one and not the other," said Eugene Gressman, a professor of law at the University of North Carolina and co-author of "Supreme Court Practice," considered the definitive textbook on the court's procedures.
Any of Rehnquist's votes to grant an appeal, known as a petition for certiorari, would probably stand, however. Gressman noted that, unlike votes on cases, votes on procedural orders such as certiorari are "immediately effective."
Fortunately, this is not an issue that the court has needed to consider often in its history.
No member of the court has died during a term since Justice Robert H. Jackson on Oct. 9, 1954.
That was shortly after the beginning of the court's October term, and before the justices had heard any oral arguments.
But there was one case that the court voted on at conference with Jackson participating -- and decided after his death.
It involved a motion by Abraham J. Isserman, a defense attorney for leaders of the American Communist Party, to overturn his expulsion as a member of the Supreme Court bar. Isserman had been disbarred by the state of New Jersey because he had been found in contempt of a federal court.
On April 6, 1953, the Supreme Court ruled that this was grounds to strip him of his Supreme Court bar membership as well. The vote was 4 to 4; sufficient, under the court's then-prevailing rules, to uphold a disbarment. Justice Tom C. Clark did not participate. Jackson dissented.
Then two things happened: Chief Justice Fred M. Vinson, who had voted to disbar Isserman, was replaced by Earl Warren. And the court changed its rules. Now, a tie would favor Isserman.
Isserman asked the court for a rehearing. His petition was considered at conference during the first week of October, with Jackson participating. Warren and Clark sat the case out -- leaving only seven justices participating.
Isserman's request for a rehearing was granted by the required majority vote of 4 to 3, with Jackson and the other three dissenters now in the majority, according to John Q. Barrett, Jackson's biographer and a professor of law at St. John's University. The same 4 to 3 majority voted in favor of Isserman's remaining in the bar.
On Oct. 9, Jackson died. But five days later the court issued its ruling in Isserman's case, under the heading "decided October 14, 1954."
The fact that the court did not dismiss the case shows that it let Jackson's conference vote in favor of granting a rehearing stand.
But the court's brief unsigned opinion strongly implies that it did not count Jackson's vote in favor of Isserman on the merits of the case. Rather than declaring that Isserman had won 4 to 3, it noted only that "a majority of the Justices participating did not find ground for disbarment." Then it listed the names of three dissenting justices -- suggesting that the end result was a 3 to 3 tie.
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