The Supreme Court struck down President Donald Trump's executive order to strip birthright citizenship from children of certain noncitizen parents on Tuesday, but the 5-4 decision revealed a deeply divided court. Four justices—Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh—supported the president's effort, marking what critics called a frighteningly close call for the Constitution.
Dissenting Justices Supported Revisionist History
Justices Thomas, Alito, and Gorsuch agreed with an ahistorical, cherry-picked interpretation of the 14th Amendment's ratification to side with Trump's order. Justice Kavanaugh argued the Constitution did not cover the targeted children but said the order failed based on immigration statutes. Chief Justice John Roberts, writing for the majority, dismissed the dissent's position as having “scant evidence” and being a “dramatically revisionist view.”
“While we won the case today, we also got a grave warning about the future,” said Rep. Greg Casar (D-Texas), chair of the Congressional Progressive Caucus. “What should have been a simple unanimous, open and shut decision was dangerously close.”
Conservative Legal Movement's Long Game
The push to end birthright citizenship, once confined to fringe far-right figures like former Reps. Steve King and Tom Tancredo, moved into the Republican mainstream under Trump. His January 2025 executive order sparked a flurry of revisionist scholarship that dissenters used to justify their position. Justice Thomas noted in dissent that “a wide range of originalist scholars have concluded that the 20th century executive practice was mistaken.”
Kristen Clarke, general counsel for the NAACP, said the dissenting opinions “read more like statements in full support of advancing Trump's anti-immigration agenda.” She added, “The outcome suggests that we have a court that is incredibly fractured and highly politicized.”
Jackson's Concurrence Highlights Universalist Promise
Justice Ketanji Brown Jackson's concurrence emphasized that the 14th Amendment's birthright citizenship guarantee was an “anticaste, antisubordination reset for the Nation, not a mere spot treatment for the dark stain of slavery.” She argued that the dissenting justices sought a “return to [the] core tenet” of the “detestable Dred Scott decision,” which declared Black Americans could not be citizens.
“Their bottom line is that, for certain people, being born on American soil will not suffice to confer citizenship,” Jackson wrote. “It is that odious conclusion that the Citizenship Clause plainly rejects.”
One Vote Away from Ending Birthright Citizenship
The Supreme Court is now one vote away from ending the constitutional right to birthright citizenship, a proposition that seemed absurd just years ago. Justice Thomas promised in his dissent that the fight may not be over: “I am not sure that today's opinion will stand the test of time.”
