The Supreme Court’s announcement that Chief Justice Rehnquist will not participate in some argued cases this term (unless the case would be tied 4-4 without him) appears to have changed the dynamics surrounding his tenure. For the first time, as far as I know, editorials and columns (here and here, for example) are beginning to demand that he step down, on the view that he is no longer up to the job.
I’d urge caution on this. Justices Stevens, O’Connor and Ginsburg have already had significant bouts with cancer, and all continue to serve ably on the Court. And while no one wants to see a repeat of the debacle surrounding Justice William O. Douglas’s refusal to resign following a severe stroke, there really isn’t any indication that Rehnquist is at or near that stage. Indeed, Rehnquist is the only current member of the Court who was present during Douglas’s painful decline (Douglas resigned in 1975, three years after Rehnquist was appointed), and Rehnquist surely would not want a repeat performance to be part of his legacy.
Rehnquist’s decision not to participate in argued cases is troubling, and suggests that he may be finding it more difficult to keep up with the work of the Court while undergoing cancer treatment than he thought it would be. But without a better indication that he is truly impaired or otherwise unable to do his job, it seems to me that he still gets to choose when he wants to retire.