Supreme Court News Briefing - Jay Sekulow Answers Questions From Reporters After Oral Arguments in Assisted-Suicide Case

The Supreme Court
October 5, 2005
Media Briefing After Oral Arguments in Oregon Case

JAY SEKULOW: Good morning. I'm Jay Sekulow, chief counsel of the American Center for Law and Justice. We filed a brief in this case on behalf of the United States government.

One thing that is clear today, that this is still a closely divided court on this issue. It is quite possible, because of the changes in personnel on the court, that we might see a situation where this case has to be reargued. I think the case is close.

But there seemed to be at least a majority emerging toward the end that took the position that -- among the justices -- that the government has a legitimate interest in regulating the use of these scheduled narcotics, and this may well be -- and I think it is -- an legitimate use of what may otherwise be a legitimate drug.

So at the end of the day you're either going to end up with a very closely divided court or possibly a re-argument. But this does show that the shifting nature of the personnel on the Supreme Court of the United States is very, very important to these key cultural issues.

And one thing pointed out at the end of this was when the -- and I think very effectively -- the solicitor general, Paul Clement, made the point that it's interesting that under Oregon law these narcotics can be given out, they can be prescribed, but they cannot be implemented by a physician. And I think that shows that the regulatory scheme that the government has in place is, in fact, well within the confines of the Constitution.

And at the end of the day, when the court ultimately gets there, even with the shifting personnel situation, I think that they're going to find in favor of the United States.

QUESTION: You say it may need to be re-argued.

SEKULOW: Yes.

QUESTION: Is that so that Justice Miers...

SEKULOW: Justice Miers. Assuming Justice Miers -- and we think she will be confirmed.

Here's why. When you have a 4-4 split, technically, under the rules, that is an affirmance of the lower court. But I've had the situation where it's been eight justices on.

Justice O'Connor did hear the case, she did participate today, but unless the opinion is rendered by the time in which she's still on the court -- and that's not likely -- the fact is then you've got a 4- 4 situation, the chief can order a rehearing.

SEKULOW: And I suspect in a case with this magnitude, it would be reargued.

Look, this is literally a life-and-death case. And at the end of the day, the question is, does the federal government have regulatory authority to engage in these life-and-death decisions. And I think the answer in the end will be yes, but it may be yes delayed.

QUESTION: Do you think Miers is more likely to go with your side of the case than Justice O'Connor would be?

SEKULOW: Well, you know, it's hard -- Justice O'Connor asked tough questions, as she always does. Harriet Miers has not yet expressed an opinion on this. But based on her view of the Constitution, as she's said so far, and my knowledge of her, I'm optimistic that she would go our way.

Having said that, we will not know that until the case, if it is reargued, it has to be reargued, we'll find out when she's sitting, but until then, we won't know.

Anything else?

Great.