In a pair of oral arguments on Monday, the Supreme Court wrestled with disputes over whether U.S. companies can recover under U.S. law for losses resulting from the confiscation of property that they owned in Cuba more than 65 years ago. In Havana Docks Corporation v. Royal Caribbean Cruises, the justices considered a claim by Havana Docks, which before 1960 had owned a right to use and operate the docks in the port of Havana, that it was entitled to receive hundreds of millions of dollars from cruise lines that brought tourists to the port between 2016 and 2019 – even if the company’s right to use the docks had been scheduled to expire in 2004. And in the second case, Exxon Mobil v. Corporacion Cimex, the justices heard arguments over whether Cuban state-owned companies are immune from a lawsuit brought by Exxon Mobil, seeking compensation for the confiscation of assets owned by subsidiaries of Standard Oil, Exxon Mobil’s predecessor. In both cases, several justices had tough questions for both sides, and Chief Justice John Roberts was all but silent, making it difficult to predict how the court will rule.

Both cases involve the interpretation of the Cuban Liberty and Democratic Solidarity Act, also known as the LIBERTAD Act or as the Helms-Burton Act, after its sponsors. Title III of the law allows U.S. nationals to bring lawsuits in federal court against anyone who “traffics in property which was confiscated by the Cuban Government on or after January 1, 1959.”

Brothers in Law is a recurring series by brothers Akhil and Vikram Amar, with special emphasis on measuring what the Supreme Court says against what the Constitution itself says. For more content from Akhil and Vikram, please see Akhil’s free weekly podcast, “Amarica’s Constitution,” Vikram’s regular columns on Justia, and Akhil’s new book, Born Equal: Remaking America’s Constitution, 1840-1920.

What determines whether a baby born on American soil is a constitutional birthright citizen? Is it the domicile of that baby’s parents? Their allegiance? Their law-abidingness?

No, no, and no. Constitutional birthright citizenship in fact has virtually nothing to do with the baby’s parents, and instead has everything to do with a simple, concrete fact: Was the baby born under the flag?

When a baby is born, if American soil lies below and an American flag flies above, that baby is a birthright citizen, as Reconstruction Republicans across the land understood. This originalist rule is clear and clean: look down, and then look up.

Courtly Observations is a recurring series by Erwin Chemerinsky that focuses on what the Supreme Court’s decisions will mean for the law, for lawyers and lower courts, and for people’s lives.

The Supreme Court’s decision in the tariffs case reveals fascinating – and significant – differences among the six conservative justices. It is tempting to think of these justices as a bloc, and they do often vote that way. But in the tariffs case, Learning Resources, Inc. v. Trump, decided on Friday, Feb. 20, five of the conservative justices – Chief Justice John Roberts, and Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett – wrote opinions in which they expressed significantly different views, even among those (Roberts, Gorsuch, and Barrett) who sided against the president. This divergence could have great importance in the future.

Returning from its winter recess, the Supreme Court on Monday added just one new case to its oral argument docket. In a list of orders from the justices’ private conference last week, the court agreed to review a ruling by the Colorado Supreme Court in Suncor Energy Inc. v. County Commissioners of Boulder County, a case brought under state law by Boulder, Colorado. Boulder contends that oil and gas companies have knowingly played a role in exacerbating climate change and therefore have caused millions of dollars of damage to its property and residents.

Today is the first time the court is taking the bench since its nearly four-week mid-winter recess. It is a day for bar admissions and possible opinions before the February sitting starts in earnest on Monday.
 
The tariff case is hanging in the air. Solicitor General D. John Sauer, who argued for the president’s policies, is here, with two assistants from his office. Neal Katyal, who argued for the challengers in the companion case of Trump v. V.O.S. Selections, is also in the bar section.
 
Two groups are here for admission to the Supreme Court Bar, one from Washburn University Law School and the other the Metropolitan Black Bar Association, of New York City. They don’t know in advance that they will get to witness such a historic day.