A Deep Dive into the Supreme Court’s Birthright Citizenship Decision

In Trump v. Barbara, decided on the last day of June this year, the Supreme Court upheld the district court’s judgment invalidating President Donald J. Trump’s Executive Order 14160 that sought to restrict the scope of birthright citizenship. As has been long settled, and as the Court affirmed, under the Fourteenth Amendment, with limited exceptions, any child born in the United States is a citizen of the United States. On a recent Touro Law Review podcast, I had the pleasure of speaking with Professor Rachel Rosenbloom of Northeastern University School of Law to discuss the Court’s decision in Barbara. Professor Rosenbloom teaches immigration and administrative law, writes extensively on immigration enforcement and citizenship, and is currently writing a book on the history of efforts to restrict birthright citizenship. Professor Rosenbloom brought a unique vantage point to the conversation: along with Professors Gerald L. Neuman (Harvard Law School) and Kristin Collins (Michigan Law School), she filed an amicus brief in the case on the statutory question presented. (The brief argued that in addition to violating the Fourteenth Amendment, Executive Order 14160 also violated a federal statute, 8 U.S.C. § 1401(a).) I invite you to listen to our full discussion, available here: A Deep Dive into the Supreme Court’s Birthright Citizenship Decision. With the assistance of Artificial Intelligence (AI), here is an edited summary of the key points of our conversation. Background and Procedural History The case arose from Executive Order 14160, issued by President Trump on his first day back in office in 2025, which essentially sought to exclude two groups of U.S.-born children from birthright citizenship: “children [1] born of persons unlawfully or [2] temporarily present in the United States,” according to the Supreme Court. The executive order was enjoined almost immediately by multiple district courts, and one of those cases reached the Supreme Court and was decided in 2025 in Trump v. CASA, Inc.—but only on the question of “universal” injunctions, which were found to be unlawful. The Court did not address the legal merits of President Trump’s order in that case. This term, in a case proceeding as a class action, the underlying constitutional and statutory questions returned to the Court, resulting in the decision discussed on the podcast. The Court ruled against the administration, but—contrary to widespread predictions of a clear ruling against the President—did so by a narrower margin than most observers expected. As discussed below, the Court found that the executive order violated federal law by a 6-3 vote and violated the 14th Amendment of the Constitution by a 5-4 vote. Professor Rosenbloom said she was not entirely surprised at the close vote, given the voting record of the current Court, but that it was nevertheless shocking that revisionist views gained ground with four justices. The Majority Opinion Professor Rosenbloom walked through Chief Justice John Roberts’s majority opinion, which she praised as clear and concise and treated the constitutional question, in essence, as an easy one. The opinion traces birthright citizenship from English common law through its adoption in early American common law, its corruption by racial exceptions culminating in Dred Scott v. Sandford in 1857, and its restoration through the Reconstruction Amendments. Chief Justice Roberts’s opinion reaffirmed United States v. Wong Kim Ark (1898) as controlling and treated its recognition of citizenship for children born to noncitizen parents as settled law admitting of only a narrow, closed set of exceptions. Professor Rosenbloom noted that where the Wong Kim Ark decision is long and meandering, Roberts’s opinion is clear and readable. Justice Jackson’s Concurrence Professor Rosenbloom highlighted Justice Ketanji Brown Jackson’s concurrence. Jackson fully joined the majority opinion but wrote separately to engage directly with Justice Clarence Thomas’s dissent. Jackson argued that the 14th Amendment’s Citizenship Clause was not merely a “spot treatment for the dark stain of slavery” (as she characterized Thomas’s position) but reflected a broader anti-caste, anti-subordination principle. Jackson’s concurrence drew extensively on historical scholarship on the Black freedom struggle, a topic with which Roberts’ opinion engaged only very briefly. Professor Rosenbloom noted Justice Jackson’s pointed footnote cataloging the Court’s history of failure to uphold the promise of racial equality. This footnote cited the Civil Rights Cases, Korematsu, and the Insular Cases, as well as recent cases. In Professor Rosenbloom’s view, Jackson’s concurrence, although nominally aimed only at Justice Thomas, deserves to be read in tandem with the majority opinion: where Chief Justice Roberts set out the doctrinal throughline and focused on the roots of birthright citizenship in English common law, Jackson conveyed the significance of birthright citizenship in the history of struggles for racial equality in the United States. Justice Kavanaugh’s Concurrence in Part and Dissent in Part Professor Rosenbloom and I spent considerable time discussing Justice Brett Kavanaugh’s opinion, which agreed with the majority on the statutory claim (making the vote 6-3 on that issue) but dissented on the constitutional question (making it 5-4 on that issue). Kavanaugh accepted that Wong Kim Ark established a narrow, closed set of exceptions to birthright citizenship but argued that Congress could, prospectively, create new exceptions by statute. Professor Rosenbloom disagrees with this conclusion. In her view, the entire point of the Fourteenth Amendment was to remove citizenship from the reach of the legislature. She noted, however, that at least Kavanaugh was transparent about seeking to add new restrictions to birthright citizenship rather than distorting the nineteenth-century history to reach his preferred result. The Dissents: Justices Thomas, Alito, and Gorsuch Professor Rosenbloom emphasized that the dissents, though aligned in result, were fractured in reasoning. Justice Thomas’s 91-page dissent, joined by Justice Neil Gorsuch, argued that parental domicile always has been a requirement for birthright citizenship. Thomas relied heavily on doctrine drawn from numerous contexts that have no relationship to birthright citizenship doctrine, such as the doctrine governing state citizenship for the purpose of diversity citizenship. Justice Gorsuch, writing separately, signaled that he might treat children of undocumented immigrants differently from children of temporary visa holders, on the grounds that many children of undocumented immigrants have parents with long-term residence in the United States. (Justice Thomas, in a footnote, declined to express an opinion on that question.) Justice Samuel Alito, by contrast, framed his dissent around the concept of “allegiance,” arguing that only children who are not “subject to a foreign power” are birthright citizens —an approach Professor Rosenbloom characterized as incoherent when tested against Wong Kim Ark’s own facts, as the parents in that case were “subject to a foreign power” as Alito used the term. Historical Context and Looking Ahead The conversation concluded with a discussion of how Barbara fits into the longer history of attempts to restrict birthright citizenship—from nineteenth-century efforts directed at Chinese immigrants, to early twentieth-century campaigns against Japanese immigrants, to the contemporary anti-immigration movement that emerged in the 1970s. Professor Rosenbloom observed that birthright citizenship has repeatedly frustrated efforts to construct a formal hereditary caste system in American law, even during periods when the judiciary otherwise was unsympathetic to racial justice claims. Professor Rosenbloom drew a parallel between the Court that decided Wong Kim Ark in 1898—two years after Plessy v. Ferguson and squarely within the Lochner era—and the current Court, which has retrenched in many areas of law with respect to racial justice while nonetheless holding the line, so far, on birthright citizenship. Whether that line continues to hold, she suggested, will depend less on the constitutional text than on the political forces that have targeted birthright citizenship for over a century.