Watch the accompanying video,  The divided Supreme Court’s birthright citizenship decision exposes sharp rifts among justices, to follow the story from AP News.

According to the article, the U.S. Supreme Court’s divided ruling that children born in the U.S. are citizens under the Fourteenth Amendment — even if their parents are in the country unlawfully or only temporarily — exposed deep fissures in the justices’ views on the issue and toward each other. 

The Court’s two Black justices notably had very different views on U.S. citizenship in the context of Reconstruction after the Civil War.

The Court’s decision rejects an order President Donald Trump issued at the start of his second term, declaring that children born to people who are in the United States illegally or temporarily are not American citizens.

The majority, composed of Chief Justice Roberts and Justices Sonia Sotomayor, Elena Kagan, Amy Coney Barrett, and Ketanji Brown Jackson, determined that birth on U.S. soil plus being subject to U.S. law is enough for citizenship. 

Several dissenters, including Justices Clarence Thomas and Samuel Alito, say birth alone is not enough — the child’s parents must have a deeper political allegiance or relationship to the U.S.

Jackson’s direct disagreement with Thomas’ dissent highlights a major rift between the legal minds. Here are the justices in their own words: 

Chief Justice John Roberts

Much of Roberts’ opinion was a history lesson on English common law, in which he concluded that birthright citizenship has always depended primarily on birthplace — not on parents’ immigration status or domicile.

“Citizenship, then and now, was the right to have rights — to freely participate in our political community. The Framers of the Fourteenth Amendment extended that promise to ‘every free-born person in this land,’” Chief Justice John Roberts wrote for the court, citing congressional debate over the amendment, “We keep that promise today.”

“We break no new ground today,” Roberts said on the bench as he read the court’s majority opinion. 

Justice Clarence Thomas

Thomas, who wrote the main dissent, disagreed with the majority’s opinion and argued that American-born children are not automatically American citizens.

The basis of his argument, among other things, is that the court ignored evidence from Reconstruction debates that suggested citizenship depended on a deeper relationship to the country. After the Civil War, the U.S. underwent a series of political and constitutional battles over how to define the civil rights and citizenship status of formerly enslaved Black Americans. 

“The Citizenship Clause was enacted for people who were born in this country and called it home. It was enacted for freed slaves such as Dred Scott, who had ‘a domicile’ here and therefore were entitled to sue as citizens,” Thomas wrote in his dissent, concluding that Reconstruction was a targeted remedy for freed slaves to restore citizenship to a wrongfully excluded group.

“In my view, the Citizenship Order is not facially unconstitutional,” Thomas wrote, referring to Trump’s executive order. “The Order is consistent with the original meaning of the Citizenship Clause, at least insofar as it applies to children born to parents, here lawfully or unlawfully, who are not domiciled in the United States.”

Justice Ketanji Brown Jackson

Justice Ketanji Brown Jackson agreed with the opinion in full, but wrote to respond to Clarence Thomas’ dissent, arguing that Thomas fundamentally misunderstands what the Reconstruction Amendments — the Thirteenth, Fourteenth, and Fifteenth Amendments — are trying to accomplish.

“Despite his longstanding endorsement of a ‘colorblind’ Constitution, Justice Thomas, now surprisingly suggests that the Citizenship Clause was a race-conscious remedial measure, relating only to ‘freed slaves such as Dred Scott’ — but that narrow vision of the Fourteenth Amendment bears little relationship to the history of its ratification.”

“The Reconstruction Amendments were an anti-caste, anti-subordination reset for the Nation, not a mere spot treatment for the dark stain of slavery.”

“The Court’s conception of a color-blind Constitution and the Government’s (and principal dissent’s) cramped, group-specific reading of the Citizenship Clause are two sides of the same coin, stemming from a basic misunderstanding of the relevant history.”

Discussion Questions

  1. What is “birthright citizenship?”

    Birthright citizenship is the principle that a person becomes a U.S. citizen automatically at birth, either by being born on U.S. soil under its jurisdiction or by being born abroad to at least one qualifying U.S. citizen parent. In the United States, this rule is grounded in the Citizenship Clause of the Fourteenth Amendment, which guarantees citizenship to nearly all individuals born in the country, regardless of their parents’ immigration status, with narrow exceptions such as children of foreign diplomats.

  2. The operative constitutional language in this case, Section 1 of the Fourteenth Amendment to the U.S. Constitution, reads as follows: “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.” Based on this rather exacting language, are you surprised that the Supreme Court decided to “take up” (i.e., review) this case? Why or why not?

    This is an opinion question, so student responses may vary.

    The Fourteenth Amendment was ratified, and officially became part of the U.S. Constitution, in July 1868, roughly 158 years ago. In your author’s opinion, its language could not be clearer. Your author never thought he would witness a legal challenge to this fundamental, well-settled, constitutional right. Your author is surprised (perhaps “shocked” would be the more appropriate term) that the Supreme Court even chose to take up the case.

  3. What is the ethical argument for Section 1 of the Fourteenth Amendment and birthright citizenship?

    This is, in essence, an opinion question, so student responses may vary.

    In your author’s opinion, the ethical argument for Section 1 of the Fourteenth Amendment rests in the innocence of the newborn child, who is free from the scourge of divisive politics and does not have the mental capacity to “forum-shop,” either individually or in “conspiracy” with their parents, for the purpose of choosing citizenship. Additionally, the child has absolutely no control over the choices or circumstances of their parents.

    Your author’s opinion is also based in the firm belief that diversity does not weaken us but instead makes us stronger—250 years of American history collectively demonstrate that.