On the final day of its term, the Supreme Court issued a majority opinion affirming that birthright citizenship is a constitutional right under the Fourteenth Amendment.
The Tuesday decision, which overturned President Trump’s executive order restricting birthright citizenship, reaffirmed longstanding legal doctrine. Yet four justices—Clarence Thomas, Brett M. Kavanaugh, Samuel A. Alito Jr., and Neil M. Gorsuch—expressed doubt that birthright citizenship constitutes a constitutional right for all groups.
(Justice Kavanaugh concurred with the majority’s decision to strike down Mr. Trump’s executive order, grounding his reasoning in a federal statute rather than the Fourteenth Amendment.)
Ultimately, birthright citizenship survived by a single vote, underscoring how far the conservative legal movement has moved on this issue.
“This should have been a unanimous 9‑0 decision,” said Bethany Li, executive director of the Asian American Legal Defense and Education Fund, which filed an amicus brief opposing the president’s order.
For over a century, the overwhelming consensus among legal scholars and courts held that the Fourteenth Amendment granted citizenship to the children of formerly enslaved people and, more broadly, to almost all infants born in the United States. The theory that the amendment applied solely to slavery and excluded children of temporary visitors emerged as a fringe academic view in 2015, when Mr. Trump launched his presidential campaign.
This momentum culminated in an executive order issued by Mr. Trump on his first day back in office last year, aimed at ending birthright citizenship for the children of undocumented immigrants and certain temporary foreign residents.
“A year and a half ago, many said this view lacked support, was ahistorical and at textual,” said Ilan Wurman, a law professor at the University of Minnesota who filed an amicus brief supporting Mr. Trump’s executive order. “Thus, securing four votes for the administration’s position is quite a coup.”
Nevertheless, the ruling ultimately proved a victory for advocates of birthright citizenship.
Chief Justice John G. Roberts Jr. authored the majority opinion, grounded in the Fourteenth Amendment, which scholars said aimed to conclusively resolve the birthright citizenship debate. The amendment reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
“I believe this issue has been settled for another century,” said John Yoo, a law professor at the University of California, Berkeley, and former top Justice Department lawyer in the George W. Bush administration.
Professor Yoo noted that Chief Justice Roberts’s opinion was “confident and declarative” regarding the meaning of the Fourteenth Amendment, indicating that affirming birthright citizenship for virtually everyone “was never in doubt.”
Nevertheless, Professor Yoo and other scholars emphasized that the once‑fringe legal theory has gained traction among conservative scholars, partly due to new research into the history of the Fourteenth Amendment.
To gauge how a narrow interpretation of the Fourteenth Amendment’s citizenship clause was once deemed fringe, consider a recent challenge, said Amanda L. Tyler, a constitutional law scholar at UC Berkeley, who filed an amicus brief asserting that birthright citizenship is a constitutionally guaranteed right.
In 1942, the Native Sons of the Golden West filed a lawsuit contending that Japanese‑American individuals born in the United States were “enemy aliens” and thus ineligible for citizenship and voting rights.
Just after Japan’s attack on Pearl Harbor, the U.S. government began relocating 100,000 American citizens and other residents of Japanese ancestry to internment camps, designating them as “enemy aliens” and barring them from military service.
Even amid heightened anti‑Japanese sentiment, the Ninth Circuit Court of Appeals halted oral arguments, declaring that the birthright citizenship question was not open for debate.
The Supreme Court declined to hear the appeal.
“There was no appetite for revisiting these questions, let alone giving credence to arguments that undermined birthright citizenship,” Professor Tyler said. “Yet today, the Supreme Court barely affirms those precedents by a single vote.”
Because the Supreme Court decides cases by majority vote, rulings such as 6‑3 or 5‑4 have the same practical effect as unanimous decisions. However, 9‑0 rulings are perceived as carrying greater weight, prompting Chief Justice Earl Warren to strive for unanimity in the 1954 Brown v. Board of Education decision.
Michael D. Ramsey, a law professor at the University of San Diego and former clerk to Justice Antonin Scalia, expressed surprise that more “textualist and originalist‑oriented” justices did not more strongly support Chief Justice Roberts’s argument, which he viewed as firmly grounded in the original meaning of the text.
The dissenting opinions, Professor Ramsey noted, appeared more focused on the intent of the amendment’s adopters than on its text and historical context.
“This confirms a serious substantive divide, not only among legal scholars but also among justices emerging from the conservative legal movement,” he added.
William Baude, a constitutional law scholar at the University of Chicago, said that while the majority’s argument was broadly persuasive, the case also raised highly complex questions about the meaning of “jurisdiction,” as reflected in the differing dissenting opinions.
Whether these alternative constitutional interpretations will influence public opinion remains uncertain. A Reuters/Ipsos poll conducted last week found that about 55 percent of Americans oppose ending birthright citizenship.
“The question is whether the dissenting arguments will ultimately be persuasive and whether public interest will continue to push this issue,” Professor Baude asked.
“We don’t know what will happen,” he added. “The Supreme Court lacks the power to end the debate.”
