William G. Ross, Cumberland School of Law, Samford University:

"Chief Justice Rehnquist's hospitalization for thyroid cancer treatment has provided a sudden and poignant reminder to many voters that the winning candidate in next Tuesday's election is likely to make US court appointments that could have profound political consequences. The future of the Supreme Court, which has barely registered with most voters, may now become an important campaign issue.

Rehnquist's illness is no more than a catalyst for activation of this issue since the advanced ages of the Justices made vacancies likely before Rehnquist's illness, and there is no reason to suppose that Rehnquist's resignation is imminent since Rehnquist is scheduled to return to the bench next week. It is impossible to predict which, if either, candidate will benefit from the renewal of interest in the Court, although a recent Time Magazine poll indicated that the prospect of Supreme Court appointments made voters slightly more inclined to vote for Kerry. At the very least, both parties are likely to use the newly emergent judicial issue as a means of energing their political bases, particularly those voters who have strong opinions about abortion. Since pro-choice voters already are likely to vote for Kerry and pro-life voters are generally committed to Bush, however, the judicial issue is not likely to sway many votes among abortion activists. By distracting attention from national security, though, it may stimulate support for Bush among antiwar conservatives and moderates, while helping Kerry among liberals who trust Bush more than Kerry on foreign policy issues.

It is interesting to note that Roger B. Taney, the only Chief Justice to serve at a more advanced age than Rehnquist, died three weeks before the 1864 election, at age 87. Preoccupied with the Civil War, voters do not appear to have allowed the vacancy on the Court to have influenced that election, although Taney's death may have stimulated support for Lincoln insofar as it stirred up bitter memories of Taney's Dred Scott opinion and similarly provided a timely reminder of the Court's political influence." [October 26, 2004]