CJ Rehnquist still ailing and out

According to articles in the AP and the NY times and the Washington Post, Chief Justice Rehnquist will be absent from the Supreme Court through its December session (which start Monday) while he continues to receive chemotherapy and radiation treatments as an outpatient and works from his home.

This news will surely fuel the continued speculation that CJ Rehnquist may retire quite soon, and it also has me still wondering how his health might be impacting the Court’s work on the Booker and Fanfan cases.  Moreover, it is worth remembering that CJ Rehnquist is one of the critical five votes supporting the decisions in Harris, which allows judges to find facts that enhance minimum sentences, and Almendarez-Torres exception, which allows judges to find “prior conviction” facts that enhance sentences.

Though I am sure the Blakely discussion will take a back seat to other hot-button social issues like abortion, it is worth noting the possible impact on criminal law jurisprudence if and when CJ Rehnquist retires.  The future of sentencing reform could be, at least partially, in the hands of CJ Rehnquist’s eventual successor.