Supreme Court Justice Ketanji Brown Jackson called out Justice Clarence Thomas and the Trump administration in a sharp concurring opinion in the birthright citizenship case on Tuesday.
The court’s decision Tuesday followed President Donald Trump’s potentially seismic executive order on his first day in office last year that declared children born to people who are in the U.S. illegally or temporarily are not American citizens. The court upheld birthright citizenship in a 6-3 ruling Tuesday. Justices Samuel Alito and Neil Gorsuch joined Thomas in ruling against upholding it.
The proposed crackdown threatened to upend the Constitution’s 14th Amendment, which states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside.”
Echoing the Trump administration’s sentiments, Thomas argued in his dissent that the 14th Amendment “was designed and understood to secure equal rights for the freed blacks but has instead been repurposed for political projects that the Reconstruction Congress did not support.”
Thomas also argued that the Civil Rights Act, which became the foundation for the 14th Amendment, had ensured citizenship to people born in the U.S. and “not subject to any foreign power.”
“The Citizenship Clause [of the 14th Amendment], which the same Congress passed shortly after the Civil Rights Act, was understood to have the same meaning,” Thomas wrote. “It guaranteed citizenship to persons who were both ‘born . . . in the United States’ and ‘subject to the jurisdiction thereof.’”
Jackson called this “ahistorical,” denying that the “text at issue conferred citizenship only on freed Blacks and those in analogous situations.”
Jackson also blamed the Trump administration and Thomas for repurposing the amendment, adding that the Civil Rights Act initially only included Black people but was later expanded to include people of all ethnic backgrounds.
“By ignoring that our Constitution stands firmly against caste and subjugation—on all axes and in all manners—they deny the clear, universalist vision shared and proclaimed by the Fourteenth Amendment’s Framers: to ‘rebuild a shattered empire . . . to plant deep and solid the corner-stone of eternal justice, and to erect thereon a superstructure of perfect equality of every human being before the law,’” Jackson wrote.
“What is more, this alternative account pitches Black Americans against immigrants when the advocates who promoted the Fourteenth Amendment did no such thing,” Jackson also argued.
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The Trump administration argued the 14th Amendment’s birthright citizenship clause, and subsequent court precedents, meant to limit citizenship at birth to children of parents “domiciled” in the U.S., which in turn requires them to owe “allegiance” to America.
Despite the court’s conservative majority often ruling in Trump’s favor, the justices rejected his administration’s proposed limits to birthright citizenship on Tuesday.
“Children born in the United States to parents unlawfully or temporarily present are ‘subject to the jurisdiction’ of the United States and are citizens at birth under the Fourteenth Amendment’s Citizenship Clause,” Chief Justice John Roberts wrote in the 6-3 ruling.
Thomas, who notably holds originalist views that even some other conservatives reject, argued that he’s doubtful the Tuesday ruling on birthright citizenship “will stand the test of time” and that it “devalues” citizenship.
By contrast, Jackson said the ruling “preserved the most basic animating principle of our Nation’s founding—that all human beings are created equal—once more.”
Reacting to the decision, Trump said it was “bad for our Country” and called for Congress to take forward his vision for birthright citizenship.
“No long and unwieldy Constitutional Amendment is necessary!” he wrote on Truth Social. “Congress should start TODAY to work on ending expensive and unfair to our Country, Birthright Citizenship. They will have my Complete and Total Support!”
Trump’s plan, part of wider efforts to get tough on immigration during his second term, faced roadblocks even before reaching the justices, as the lower courts unanimously ruled against it.
While challenging birthright citizenship was, for decades, considered an obscure legal theory, Trump has swung fully behind the idea — even attending the Supreme Court hearings in April, in an apparent first for a sitting president.
After attending the Supreme Court hearing earlier this year, Trump falsely claimed in a Truth Social post that the U.S. is “the only Country in the World STUPID enough to allow ‘Birthright’ Citizenship!”
More than 30 countries, including Canada, Mexico and Brazil, offer automatic birthright citizenship.