Since becoming legal director of the American Civil Liberties Union in 1993, Steven Shapiro has been counsel of record on hundreds of Supreme Court briefs.
But during that period Shapiro never actually argued before the Court, adhering to the organization’s usual practice of allowing lawyers who were with the case from the beginning to take on the assignment.
On January 9, however, Shapiro will step up to the lectern and argue in the case of Missouri v. McNeely, an important Fourth Amendment case asking whether police may obtain a nonconsensual blood sample from a drunk driver under the “exigent circumstances” exception to the warrant requirement.
Shapiro said in an interview that he did not seek out the argument on behalf of defendant Tyler McNeely. But when McNeely’s lawyer asked for ACLU help, and no other ACLU lawyer was attached to the case, Shapiro agreed to step in.
“It’s something I wanted to do again,” said Shapiro, 61. In 1987, then a staff lawyer for the ACLU, Shapiro argued in Reagan v. Abourezk, which ended up being decided in his favor by an evenly divided court. “I was happy to seize the opportunity.”
The Supreme Court is a much hotter bench now than it was then, but Shapiro said he is ready. “I’ve been through this many times,” Shapiro said, referring to all the steps that lead up to argument—briefing, moot courts and the like. Shapiro is optimistic that the court will view a warrantless blood sample—barred by statute in 26 states—as “an assault on bodily integrity.”
Shapiro said he will likely know “which way the court is heading” even before he argues, because lawyers for the government will appear first: assistant prosecuting attorney John Koester Jr., and assistant to the U.S. Solicitor General Nicole Saharsky.
Also appearing in the first argument cycle of 2013 will be Solicitor General Donald Verrilli Jr, handling a telecom case as he often did before he joined the government. At issue in City of Arlington, Texas v. FCC is the Federal Communications Commission’s authority to regulate local zoning that affects the placement of wireless communications towers and antennas. The government’s brief also casts the case as an important test of deference to agency interpretations under Chevron v. Natural Resources Defense Council. Verrilli sat out the last argument cycle in December.
Two veteran advocates will square off January 7 in a key class action dispute, Standard Fire Insurance v. Knowles. Theodore Boutrous Jr. of Gibson, Dunn & Crutcher will argue on behalf of the insurance company, while David Frederick of Kellogg, Huber, Hansen, Todd, Evans & Figel will represent class action plaintiff Greg Knowles. The dispute under the Class Action Fairness Act is over tactics used by plaintiffs to keep class actions in more favorable state courts and away from more defense-friendly federal courts.
The only former solicitor general listed so far as arguing in the January cycle is Paul Clement of the Bancroft firm, set to appear in Maracich v. Spears, a case of interest to lawyers that arises from the Driver’s Privacy Protection Act of 1994. The law prohibits the use of personal drivers’ information gathered by states, unless the use falls within one of several exceptions, including litigation. Arguing opposite Clement will be Sidley Austin’s Joseph Guerra.
Tony Mauro can be contacted at firstname.lastname@example.org.