William Rehnquist, chief justice of the US Supreme Court, is due to return to the bench on Monday after revealing that he has thyroid cancer.

His rapid return to work, just over a week after undergoing a tracheotomy apparently connected with his illness, has generated speculation not only about his long-term future on the court, but also about his more immediate role, should the justices end up getting involved again in resolving a disputed presidential election.

Colleagues and friends all stress Mr Rehnquist's toughness and determination.

Justice Clarence Thomas told University of Kansas law students last week he expected the chief justice back at the court “as unforgiving as ever”.

But what if his health deteriorates? What would happen if Mr Rehnquist were soon to retire, be incapacitated or die in office?

The prospect of a departure from the narrowly divided court is worrying enough in normal times, legal experts say, because it raises the possibility that the justices will often split 4:4, a result that automatically affirms the lower court's ruling without clarifying the law.

But if the chief justice were to leave the court at a time when the presidential election was in dispute, such a split would be especially problematic.

If the chief justice's seat were to become vacant before the next presidential term begins on January 20, President George W. Bush would have the power to appoint a temporary successor for him, by so-called “recess appointment”.

But that could cause “a serious constitutional crisis,” Mark Moller of the libertarian Cato Institute wrote last week in Slate, the online magazine.

He explores the scenario in which “President Bush appoints the Rehnquist replacement who casts the vote that decides the election” and calls it a “horror story”.

Mr Bush has attracted controversy by using recess appointments to name federal appeals court judges, legal experts say.

But appointing a justice who could deliver him an election victory is an entirely different matter and would cause a storm on Capitol Hill.

“Lawmakers could impeach Bush if they decided the tie-breaking appointment was an abuse of power,” Mr Moller writes in his article.

Hopefully, none of this will come to pass. The chief justice participated from his hospital bed last week in at least two decisions of the court.

It seems likely he will try his hardest to continue to do so especially if the justices should become involved again in electoral politics.

Lex, Page 14

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