Note: This story has been changed to clarify that troops preserve sperm before heading off to Iraq or Afghanistan.
It might be hard to believe, but the constitutionality of the Affordable Care Act is not the only issue the U.S. Supreme Court will be wrestling with this month.
Before the justices hear the health care cases argued during the week of March 26, they will consider six cases this week. Some of them are fascinating, and some would grab major headlines in any argument cycle other than this one.
In the fascinating category is Astrue v. Capato, set for argument on March 19. It asks whether a child conceived and born after a parent’s death through in vitro fertilization is eligible to receive survivor benefits from Social Security. The case was brought by Karen Capato, who gave birth to twins 18 months after her husband Nick died of cancer. He had banked sperm before starting chemotherapy. Interestingly, the issue does not just affect situations like theirs. One amicus brief in the case points out that it is not uncommon for male soldiers to preserve sperm before heading off to Iraq or Afghanistan.
On Tuesday, March 20, the Court will consider Miller v. Alabama and Jackson v. Hobbs, testing whether sentences of life without the possibility of parole are unconstitutional for defendants who commit murder as juveniles.
The arguments shape up as a sequel to the 2005 ruling in Roper v. Simmons, which barred the death penalty for juveniles, and 2010′s Graham v. Florida, which struck down life-without-parole sentences for minors in nonhomicide cases.
Bryan Stevenson, executive director of the Alabama-based Equal Justice Initiative, will argue for the juveniles in both cases. Stevenson, incidentally, recently did a so-called “TED talk” on the American justice system, viewed by nearly 400,000 people online as of last week.
Then on March 21, the Court considers Reichle v. Howards, a qualified-immunity case with facts dating back to the George W. Bush administration. Steven Howards sued two Secret Service agents for arresting him in retaliation for exercising his First Amendment rights. Howards was accused of touching Vice President Dick Cheney — and then lying about it — while making anti-war remarks to Cheney during a 2006 visit to a Colorado shopping mall. The agents claim they should be immune from the suit because they had probable cause to arrest Howards.
Oh, yes, and there are two more cases before the Court this week that might have gotten more attention if the health care cases had not sucked all the oxygen out of the room: Southern Union Co. v. U.S., asking whether the Apprendi line of cases, requiring submission of sentencing facts to jurors, also extends to criminal fines levied against companies; and Vasquez v. U.S., interpreting the “harmless error” doctrine in a drug dealer’s appeal of his conviction.
Dan Popeo, a founding figure in Washington’s conservative Supreme Court community, was in recent years a very private figure. So when he died on Feb. 21 in upstate New York after an illness, word barely spread. His death got far less attention than that of Andrew Breitbart, a flashy conservative with a much shorter résumé.
Popeo founded the Washington Legal Foundation (WLF) in 1977 with a sharp focus on protecting free enterprise in the courts. Under his leadership, the foundation filed dozens of briefs with the Supreme Court, generated research and advocacy papers, and held briefings on the Court that gave exposure to most of the top Supreme Court advocates in town.
At the beginning, Popeo was often in the spotlight, embracing his role as a quotable, go-to conservative for journalists who needed to add balance to stories on almost any topic. “Just tell the ACLU to always look for us in their rear-view mirror,” Popeo told this reporter on the foundation’s 10th anniversary in 1987.
Popeo stepped back from the spotlight in recent years, except for his “In All Fairness” columns — more than 160 of them — placed in ads on The New York Times op-ed page since 1998.
“By sheer force of personality, Dan was able to attract the best and the brightest of the pro-business bar to WLF’s cause,” said former Attorney General Dick Thornburgh, now of counsel to K&L Gates and chairman of the WLF’s legal advisory board. “Dan Popeo’s contribution was unique.”
“Dan didn’t go out seeking millions, but he had a million ideas,” said Eugene Sullivan, former chief judge of the U.S. Court of Appeals for the Armed Forces. Sullivan, now senior partner in the D.C. firm Freeh Sporkin & Sullivan, was a friend of Popeo’s since they both worked in the Nixon White House in 1974: Popeo as a paralegal, and Sullivan as a lawyer. Popeo was 61 when he died.
THOMAS IN PRINT
Justice Clarence Thomas is not just reticent on the bench. He rarely if ever writes articles or does interviews with the news media. So how was it that his name was attached to an essay on affirmative action appearing last month in Bloomberg Businessweek?
The answer came in the tagline: “As told to Diane Brady.” Brady, who writes for the publication, is also author of the powerful new book Fraternity, an account of the experiences of a group of young black men recruited to attend the College of the Holy Cross in Massachusetts in 1968. That group included Thomas as well as noted defense lawyer Theodore Wells Jr. and Pulitzer Prize-winning author Edward Jones. Brady spoke with Thomas for the book and since then, most recently last month at an event at Holy Cross where Thomas received an honorary law degree. The essay resulted from their conversation at Holy Cross, Brady said in an interview.
“He runs hot and cold” about talking about his past, Brady said of Thomas. From her conversations and the essay, Brady said Thomas seems to have “mellowed a bit” on the issue of affirmative action. For many years, Thomas has railed against affirmative action as a stigmatizing, demeaning experience that ultimately does not help its supposed beneficiaries. That feeling has fueled his often negative assessments of his own time at Holy Cross and Yale Law School.
Recently though, Thomas has renewed contact with both schools, and Brady said, “I get the strong sense that he has very warm feelings about Holy Cross and Yale.” He seems now to recognize that both schools exposed him to “opportunities he might not otherwise have had,” Brady said.
But don’t expect Thomas to switch sides on affirmative action in the upcoming Fisher v. University of Texas case, Brady cautions. In the Businessweek essay, Thomas repeated some of his criticisms of affirmative action — including his view that it gives students access to an education they are unprepared for, setting them up for failure. That point has been raised in the Texas case.
“I’ve got the right to play the piano,” Thomas wrote. “I don’t know how to play a note. So what good is a piano?…You can take kids who want to work hard and put too much on them too soon. And then we blame them if they don’t succeed.”
THE NEXT GENERATION
A new generation of Supreme Court advocates, aficionados and nerds is being groomed and trained at Drexel University Earle Mack School of Law.
Faculty member Lisa McElroy recently brought her trainees — a mix of 2Ls and 3Ls — to the Court, where they became even more hooked on learning all there is to know about the high court. The 12 students watched two oral arguments, met with veteran advocates including Patricia Millett and Greg Garre, and heard from law clerks and Court staff members. The highlight, though, was a sit-down with Justice Antonin Scalia, who fielded questions instead of giving a prepared talk. “He said he writes dissents for us, for law students,” said one after the meeting. “It was great to see more of a human side to one of the justices,” said another.
The packed two-day schedule for the students mirrors their intense workload in McElroy’s class. They read the briefs in six cases the Court is hearing this term, then argue them and actually write opinions and dissents — before the justices do.
The goal, McElroy said, is to give the students hands-on exposure to the Court’s cases, along with a real sense of how the Court actually operates. “Of course, my real goal for the course is to turn them into life-long Supreme Court junkies,” said McElroy, who has been teaching the seminar for five years. “And it almost always works.”
Courtside is an occasional look at developments, large and small, involving the U.S. Supreme Court. Tony Mauro has written the column since 1986. He can be contacted at email@example.com.