The Supreme Court’s 5–4 Vote in the Birthright Citizenship Case Is a Scandal

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On Tuesday, the Supreme Court ruled that the first sentence of the 14^th Amendment means exactly what it says: Birthright citizenship is the nation’s fundamental law, and Donald Trump cannot repeal it via executive order. The vote was 5–4. This outcome is, of course, a relief. But the margin is a scandal. It is nothing short of stunning that Trump came one vote away from persuading the Supreme Court to repeal the bedrock of the Reconstruction Amendments based on a brazenly partisan contortion of their text and history. A view held only by fringe, far-right nativists until very recently has secured support from four of the nine members of the court: Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh. This is a shocking development that should upend all expectations that this court can be trusted to apply the most basic constitutional guarantees when a Republican president seeks to nullify them. If a theory flatly rejected by all serious legal scholars and historians can come one vote away from success, no rights are safe. Everything is on the table.

Start with the good—because it really is worth celebrating, however cautiously: Chief Justice John Roberts’ majority opinion in Tuesday’s case Trump v. Barbara gets it exactly right. The United States inherited universal birthright citizenship from England and maintained it after the Revolution, with the glaring exception of slavery. Southern states refused to acknowledge the citizenship of Black Americans, and the Supreme Court notoriously embraced their view in 1857’s Dred Scott. That evil decision helped precipitate the Civil War. Once the slave power had been vanquished, the Reconstruction Congress sought to enshrine birthright citizenship in the Constitution so it could never be stripped away again. It did so in 1868 through the 14^th Amendment, which states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens” of the nation.

Roberts walks through the congressional debates over the amendment to show that its framers recognized that their handiwork would apply to the children of immigrants. These debates also revealed that the phrase subject to the jurisdiction thereof had a particular meaning: It allowed “narrow exceptions” for the children of “foreign ministers” and certain “Indian tribes over whom the United States had ceded a part of its territorial jurisdiction.” In other words, the government relinquished its power to subject these individuals to the full force of its authority “to preserve its relationship with a foreign sovereign.” But “no such intersovereign concerns,” Roberts explains, “apply to children born of parents unlawfully or temporarily present in the United States.” Their parents are subject to the jurisdiction of the government, and so, “under the Constitution, they are citizens at birth.” Trump’s attempt to take away their citizenship is therefore unconstitutional.

This holding should have been 9–0. Yet it was somehow 5–4, with Justice Amy Coney Barrett and the three liberals joining Roberts in full. His account is the only remotely plausible reading of the 14^th Amendment and its historical record. Indeed, the Supreme Court had already reached this very conclusion in 1898’s Wong Kim Ark, as Roberts stresses. The same court that blessed “separate but equal” in Plessy v. Ferguson was able, in Wong Kim Ark, to see that the children of immigrants receive automatic birthright citizenship.

Yet on Tuesday, four justices resisted that obvious conclusion. Kavanaugh writes that Trump’s executive order is unlawful under a federal statute that mirrors the 14^th Amendment but not under the amendment itself; he asserts that temporary or unauthorized immigrants today are “relevantly similar” to foreign ministers in 1868, so Congress could deny their children birthright citizenship if it wished. Meanwhile, Thomas, Alito, and Gorsuch would have upheld the order against the plaintiffs’ facial challenge, holding that it is not unlawful in its entirety. Thomas and Gorsuch would have written words into the amendment that are not there, requiring parents to have “domicile” in the United States and “primary allegiance” to its government in order for their offspring to receive birthright citizenship. Alito argues that children must not be “subject to any foreign power” to receive the promise of the 14^th Amendment—so if their parents’ foreign citizenship gets passed on by descent, they do not become U.S. citizens at birth.

All of these views would have radically curtailed the constitutional promise of birthright citizenship, creating a permanent caste of people—many stateless—who are born in the U.S. but unable to exercise fundamental rights of citizenship. They would be vulnerable to detention and removal simply because of their parents’ immigration status, deportable to a foreign nation in which they have never set foot. The implementation of this scheme would be ghastly: As the Trump administration has already acknowledged, it would require officials to interrogate parents just after birth, forcing them to supply sufficient proof of “domicile” and “allegiance,” and deny their children citizenship if this proof could not be produced. Infants could be deported shortly after birth. Those who remained would have to live in the shadows, never able to legally work or secure basic protections of lawful residency.

The framers of the 14^th Amendment sought to ensure that the United States would never again tolerate an underclass denied full equality by accident of birth. It is certainly encouraging that Roberts and Barrett offer a full-throated vindication of this foundational guarantee. But it is profoundly disturbing that four justices have rejected it. Few Supreme Court cases are as straightforward as this one. Rarely does history point so clearly to one outcome. And yet the dissenters each seek to roll back the Constitution to make room for Trump’s nativist agenda. If they are willing to sacrifice birthright citizenship for this president, what other rights might they toss in the fire? What provision of the 14^th Amendment is safe from destruction? They need only nab one more vote to constitutionalize Trump’s vision of America as a caste system in which an entire class of (overwhelmingly nonwhite) people are excluded from the national community. This is not just a rejection of equal citizenship. It is a road map straight back to Dred Scott.