All of those decisions were brought ― and won ― as free speech cases, Sekulow pointed out. Historically, the Supreme Court is far more receptive to arguments framed in terms of government or religious speech as opposed to free exercise of religion, he said.
Although John Roberts enjoyed a “brief window of unanimity” in his first few months as chief justice, the court is deeply divided on many issues, Sekulow observed. He cautioned students against simply viewing the justices as liberals or conservatives, instead advising them to try to reach a super majority of justices in every petition for certiorari, brief, and oral argument.
“It’s a mistake to say ‘I’ll count on our guys, because you don’t have ‘your guys’ or ‘your gals’ on the Supreme Court of the United States,” he said, adding that his review of the late Justice Blackmun’s recently released papers ― including those relating to his own cases – proved how positions can change between oral argument and the release of the decision. “When you look at [Blackmun’s notes], you realize that the justices you ‘knew’ you had ― when you look at their first drafts, they were the dissent. Justices you didn’t think you could reach, you had. You have to try to target a broad base.”
Sekulow filed an amicus brief and helped prepare the solicitor general’s representative for oral argument in Gonzales v. Carhart; the 2007 decision in that case upheld a federal ban on a late-term abortion procedure. He observed that the language Justice Kennedy used in his majority opinion was “much stronger” than that he used in his dissent seven years earlier in Stenberg v. Carhart, when a similar ban in Nebraska was struck down. Even so, it’s unlikely that Kennedy would vote to overturn Roe v. Wade, Sekulow said.
“I’ve been very hesitant, as a litigator for various parties, to do a direct challenge on Roe,” he said. “I don’t see five votes there.” While he predicted such a challenge within 10 years, Sekulow said the logical extension of Gonzales v. Carhart in the near term is more likely to be state regulatory schemes such as those in place in South Carolina, Florida, and Utah, that mandate such procedures as ultrasounds followed by 24-hour waiting periods before abortions are performed.
Describing Chief Justice John Roberts as a “very conservative [and] very bright,” justice who takes an incremental approach in his opinions, Sekulow said that Roberts’ background as a top Supreme Court litigator has made the court more welcoming to advocates. “He has changed the dynamic in the courtroom,” said Sekulow. “Now we get to listen to the question and answer it.”
Sekulow's talk was sponsored by Duke's Program in Public Law and the Federalist Society.