The Supreme Court upheld birthright citizenship in a narrow 5-4 decision on Tuesday, preserving a constitutional guarantee that has been settled law for over a century. The ruling in Trump v. Barbara rejected President Donald Trump's attempt to strip citizenship from people born in the United States, but the slim majority and forceful dissents signal ongoing vulnerability.
Clear Constitutional Text and Precedent
The 14th Amendment states that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." The majority opinion, authored by Chief Justice John Roberts and joined by Justices Sonia Sotomayor, Elena Kagan, Ketanji Brown Jackson, and Amy Coney Barrett, applied this straightforward language. Roberts explained that the exception for those not "subject to the jurisdiction" refers only to individuals like children of foreign diplomats or enemy soldiers, who are not bound by U.S. law.
The ruling reaffirmed United States v. Wong Kim Ark (1898), which held that a man born to Chinese parents on U.S. soil was a citizen. Roberts traced citizenship rules from English common law through the "odious decision" in Dred Scott v. Sandford (1857), which the 14th Amendment was designed to overrule.
Four Votes for a Radical Departure
Justice Brett Kavanaugh provided the fifth vote for the majority but wrote separately, claiming that "significant illegal immigration" constitutes a "new circumstance" that changes the Constitution's meaning. He ultimately relied on a federal statute to block Trump's order. The primary dissent, by Justice Clarence Thomas and joined by Justice Neil Gorsuch, revived a theory first advanced by white supremacist lawyer Alexander Porter Morse in the 1880s. Morse argued that the 14th Amendment's citizenship clause applies only to children of people "domiciled" in the U.S., not "temporary visitors." This theory was rejected by courts at the time and abandoned by Morse himself after three years.
Justice Gorsuch also suggested that children born to parents who "make their permanent home here" are citizens, a carve-out with no textual basis. Justice Samuel Alito joined Thomas's dissent without additional comment.
Historical Context and Risks
The decision is the most alarming since the Court's 2024 ruling granting Trump immunity for official acts, according to the majority. The dissenting opinions were described as "the gravest judicial attack on the rule of law since Korematsu v. United States (1944)," which upheld Japanese internment. If Trump replaces any member of the five-justice majority, birthright citizenship could be overturned.
Judge John Coughenour, a Reagan appointee who first blocked Trump's order, noted that "the question presented is as clear as this one is" in over four decades on the bench. The majority opinion is only 26 pages long, reflecting the straightforward nature of the case.
Impact and Future Challenges
For now, birthright citizenship remains intact. But the 5-4 vote and the reliance on a discarded white supremacist theory by four justices underscore the fragility of constitutional protections. The ruling leaves the door open to further challenges if the Court shifts rightward.
