Author: Nabiha Syed

With only days to go before the oral arguments in the challenge to the Affordable Care Act, Court watchers have plenty of activity to capture their attention.

Coverage of the Court looks ahead to next week’s oral arguments in Miller v. Alabama and Jackson v. Hobbs, in which the Justices will consider whether juveniles convicted of murder can be sentenced to life in prison without parole. Lyle Denniston previews both cases for this blog, while Sentencing Law and Policy focuses on Michigan’s interests in the issue.

Coverage of the Court continues to parse the Justices’ decision on Monday to order reargument in Kiobel v. Royal Dutch Petroleum to address whether, and under what circumstances, the Alien Tort Statute allows foreigners to sue in U.S. courts for acts committed abroad. Courthouse News Service reports that some legal observers are puzzled at the “highly unusual move,” while at Law.com’s Corporate Counsel blog, Sue Reisinger discusses two amicus briefs that “clearly helped sway the Justices into postponing a decision while exploring a new issue not raised by the parties.”

Today the Court is scheduled to hear oral argument in two cases, Kiobel v. Royal Dutch Petroleum and Mohamad v. Palestinian Authority. In Kiobel, the Court will consider whether corporations can be held liable under the Alien Tort Statute for human rights violations committed abroad, while in Mohamad the issue is whether entities can be held liable under the Torture Victim Protection Act. Lyle previewed the cases for this blog, while Stephen Wermiel of this blog discusses the legal issues in his column for law students.  Other previews of the cases come from Nina Totenberg of NPR and Jonathan Hafetz for the ABA Preview; Ariane de Vogue of ABC News and Ed Pilkington of The Guardian have stories focusing on Kiobel only. Some of the pre-argument coverage of the case – including Mike Sacks of the Huffington Post, Marco Simons in a guest editorial at CNN, and Michael Bobelian at Forbes  – discussed Kiobel in the context of Citizens United and corporate personhood. [Disclosure:  Goldstein & Russell, P.C., whose attorneys contribute to this blog, serves as counsel to the petitioners in Mohamad, but the author of this post is not involved in the case.]

Today the Court begins its February sitting, kicking off with two arguments per day on both Tuesday and Wednesday. Orders from the February 17 Conference are expected today, as are opinions.

Monday’s coverage of the Court continues to focus on Perry v. Brown, last week’s Ninth Circuit decision invalidating California’s ban on same-sex marriage (Proposition 8), as Marissa reported yesterday. In an op-ed for the Los Angeles Times, Dale Carpenter assesses Perry’s prospects in front of the Court, concluding that “what potentially dooms Proposition 8 as it nears the Supreme Court is not necessarily the distinct whiff of prejudice but a lingering impression of incoherence.” And at Jost on Justice, Kenneth Jost notes that although “[a]ll eyes will be on Kennedy if the Prop 8 case reaches the Supreme Court,” “they should also be focused on Roberts to see whether he tries to lead the court to adopt or resist the logic of the ruling and the growing acceptance of gay marriage in the public at large.”

As the Court’s winter recess continues, coverage looks ahead to cases that will soon come before the Court.  As Marissa observed yesterday, much of the focus is on the latest developments in the challenge to the Affordable Care Act. Betsy Goldman of Bloomberg Law (video) discusses how Justice Kennedy might vote in the case, while David Lazarus  discusses the real-world impact of the case in his column for the Los Angeles Times. James Vicini of Reuters (via the Chicago Tribune) summarizes the briefs filed on Monday by the states and the National Federation of Independent Business on the individual mandate question, while Seth Stern of Bloomberg (via the Houston Chronicle) suggests that the health care litigation will  “test the justices' refusal to allow live broadcasts of their proceedings.”

With the Court’s winter recess underway, commentators continue their discussion of last week’s decision in United States v. Jones, the GPS tracking case. At this blog, Tom Goldstein provides an extended analysis of why Jones is less of a pro-privacy case than many initially reported, and why the opinions “may be the result of extremely savvy tactical moves by four members of the Court.” Orin Kerr of the Volokh Conspiracy tackles the question of why Jones is subject to such diverse interpretations, concluding that the decision is “a Rorschach test.” And at the Boston Review, Pamela Karlan discusses the difficulty of applying traditional interpretations of constitutional protections to new technologies -- which is why, after Jones, many are “still left wondering, how should we understand privacy in an electronic age?”

Yesterday the Court released three opinions in argued cases, as well as a summary reversal. United States v. Jones, in which the Court ruled that the warrantless attachment and monitoring of a GPS tracking device constitutes a search under the Fourth Amendment, captured most of the headlines. Responses to Jones streamed in almost immediately after the Court’s orders were released; Kali provides an early round-up of these reactions here. JURIST, Courthouse News Service, Wired, ACSblog, Dorf on Law, and PBS News Hour (video) all provide more coverage. Tom Goldstein of this blog explains the “odd alignment” of the Court’s two majority opinions in Jones, while Paul Ohm of Freedom to Tinker characterizes the three opinions in the case as a “near-optimal result” for those who argue that Fourth Amendment jurisprudence insufficiently protects privacy in light of new technology. At the Volokh Conspiracy, Orin Kerr discusses three questions raised by the majority’s trespass test.

Over the holiday weekend, coverage focused on recent developments at the Court. Many focused on the Court’s decision in Hosanna-Tabor Church v. EEOC, in which the Court held that the First Amendment bars suits brought by ministers who claim that they were terminated by their churches in violation of employment discrimi­nation laws. At Balkinization, Jack Balkin considers the circumstances in which the “seemingly absolute rule of Hosanna-Tabor may prove less absolute that it currently appears,” while the editorial board of the Chicago Tribune labels the unanimous decision a “crucial blow for the rights of conscience.” Jost on Justice, ACSblog, and PrawfsBlawg provide more analysis.