In the face of a measure that Congress passed and President Bush signed into law in late December to strip the federal courts of jurisdiction over cases brought by detainees at the United States naval base at Guantánamo Bay, Cuba, where Mr. Hamdan has been held since 2002, the court must decide whether it retains the right to proceed with this case at all.In my modern "Dictionary of Received Ideas," the entry for "Federal Jurisdiction" is: call it arcane. Being arcane, it's can be a good way to dispose of pesky problems. If you want to do a little sleight of hand, jurisdiction is a good move. We Federal Jurisdiction lawprofs make it our business to detect the fakery. But it's not all fakery, and the Constitution gives Congress some powers to check the courts, including the power to cut back their jurisdiction. The questions here are whether this statute cuts even pending cases, like Hamdan's, and whether that cut back goes beyond the scope of the power.
For a court that has been highly protective of its own prerogatives, but at the same time notably attentive to the often arcane limits on federal court jurisdiction, the question is one of great delicacy, infused with historical resonance.
If there is jurisdiction, then the Hamdan case will deal with the validity of using military tribunals for the Guantanamo detainees.
More on Hamdan after the oral argument.
ADDED: SCOTUSblog has a good preview, including details about a possible 4-4 split vote and what it would mean. (John Roberts has recused himself, because he participated in the case at the Court of Appeals level. There's also a controversy about whether Antonin Scalia should recuse himself, given some remarks he made about the issue recently.)
MORE: Captain Ed is pretty hard on Scalia. You know, what bothers me the most about Scalia's statement is: "I had a son on that battlefield and they were shooting at my son, and I'm not about to give this man who was captured in a war a full jury trial." Much as I respect the son's service and the father's pride in it, the interests or activities of your friends and family should have absolutely no effect on how you decide a case. Are we to think that if the enemy were only shooting at someone else's sons, he'd take a different view of the issue?
CORRECTION: I've corrected the original text to show that the argument is on Tuesday, not Monday.