SUBSCRIBE TO OUR FREE NEWSLETTER
Daily news & progressive opinion—funded by the people, not the corporations—delivered straight to your inbox.
5
#000000
#FFFFFF
5
#000000
#FFFFFF
14th amendment
Supreme Court Observers See Trump Birthright Citizenship Order on Thin Ice After Skeptical Reception
The majority of Supreme Court justices expressed "profound skepticism toward the government’s revisionist history of the 14th Amendment, with most sounding downright hostile," wrote one legal reporter.
Apr 01, 2026
Some legal experts who listened to oral arguments at the US Supreme Court on Wednesday came away with the impression that a majority of justices were skeptical of President Donald Trump's executive order that unilaterally reinterprets the 14th Amendment of the US Constitution.
During the hearing, many observers noted that some conservative justices—including John Roberts, Neil Gorsuch, and Amy Coney Barrett—all asked pointed questions of US Solicitor General John Sauer, who was presenting the case in defense of the Trump executive order that declared an end to birthright citizenship in the country, despite more than a century of legal precedent.
After listening to the arguments, Georgetown University Law Center professor Steve Vladeck predicted that the final verdict would be "7-2 to block the executive order," and maybe even an 8-1 vote.
"This wasn't (and won't be) close," said Vladeck.
Cornell Law School professor Michael C. Dorf shared Vladeck's view that a clear majority of the court would likely vote to strike down the Trump order, but he cautioned that it could give the court cover to issue less extreme rulings that would nonetheless erode Americans' rights.
"Don't get me wrong: I'm relieved that this case is shaping up as either 8-1 or 7-2 against the Trump executive order," Dorf explained. "But the case is a gift to the Supreme Court. By rejecting an outlandish position, it will earn credibility as apolitical, even as the Overton window moves far to the right."
Elie Mystal, justice correspondent at The Nation, said after watching the hearings that he simply could not imagine a majority of the court ruling in Trump's favor.
"What I don't think is a possibility is 5-4 Trump wins," he wrote. "We have [Amy Coney Barrett]. We have Roberts. We almost certainly have Gorsuch (possibly as a concurrence). I CANNOT count to five on a Trump win here. So... good. I mean, terrible that it's gotten his far. But good."
Author and former CNN legal analyst Jeffrey Toobin wasn't ready to make a full prediction on the outcome of the case, but he did note that "the birthright citizenship argument is going poorly for the Trump Administration."
Slate senior writer Mark Joseph Stern found that the Supreme Court hearing "quickly shaped up to be a blowout against the administration," with seven justices expressing "profound skepticism toward the government’s revisionist history of the 14th Amendment, with most sounding downright hostile toward the pseudo-originalist theory cooked up to legitimize the policy."
In fact, Stern thought that the administration's arguments before the court were so unconvincing that he found it "alarming" that Justices Clarence Thomas and Samuel Alito appeared convinced by its rationales.
All the same, he predicted that Trump's birthright citizenship order "is about to go down in flames."
Keep ReadingShow Less
Trump Accused of ‘Intimidation Tactic’ for Attending Supreme Court Birthright Citizenship Hearing in Person
In an unprecedented move, Trump arrived at the court after accusing conservative justices of being "disloyal" for ruling against him in previous cases.
Apr 01, 2026
President Donald Trump is being accused of trying to "intimidate" the US Supreme Court as it hears oral arguments on his attempt to kill birthright citizenship.
Trump broke nearly 250 years of precedent as he arrived at the high court on Wednesday morning to personally observe the proceedings, which no sitting president has done.
As Kathryn Watson, a reporter for CBS News, explained, historically, "presidents have avoided attendance in part to honor the separation of powers."
Trump was in attendance as the justices—three of whom he appointed—mulled what could be their most consequential decision in decades: whether to uphold an executive order that would strip away a fundamental guarantee of citizenship enshrined in the US Constitution.
Making it all the more unnerving were the president's comments about the high court on Tuesday night in the Oval Office after letting reporters know he was "going" to keep tabs on Wednesday's proceedings.
He specifically zeroed in on the Republican-leaning justices, describing those he appointed as “disloyal” for ruling against him in previous cases. While describing the liberal justices as rank partisans, who’ll vote against him no matter what, he said the conservatives were “very different.”
"They want to show how honorable they are, so a man can appoint them, and they can rule against him and be so proud of it," Trump said.
"Some people would call it stupidity," Trump went on. "Some people would call it disloyal."
The court is expected to rule this summer on the legality of Trump’s executive order declaring that the children born to undocumented immigrants or those on temporary visas would no longer automatically become US citizens.
A lower court has already ruled against Trump's order, declaring it in violation of the 14th Amendment, which was passed following the Civil War and plainly states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States."
The Supreme Court will now hear arguments from the Trump administration seeking to undo that fundamental understanding, including ones advanced over a century ago by a former Confederate officer who also helped to establish the “separate but equal” doctrine that legalized racial segregation for over half a century.
If the court votes to uphold Trump's executive order, hundreds of thousands of American citizens could become effectively stateless.
Aaron Reichlin-Melnick, a senior fellow at the American Immigration Council, said it could also throw the citizenship of tens of millions more into doubt, as it would effectively require people with legal birth certificates to "prove" their parents' legal status.
Trump's effort to strip millions of people of their citizenship comes as his Department of Homeland Security (DHS) has pushed to ultimately deport "100 million people" from the country—a number that far exceeds the population of undocumented immigrants in the US.
DaMareo Cooper explained on Tuesday for Common Dreams that the Supreme Court's decision will determine "whether a president can rewrite one of the clearest promises embedded in American law":
If the court strikes down birthright citizenship, it would let the government decide who counts as American based on the circumstances of their birth.
The 14th Amendment’s authors understood the danger of that approach.
Once citizenship becomes conditional, every other right soon follows. Ending birthright citizenship would affect everyone—not just children of immigrants—in a system that has long questioned the belonging of people of color, including Black Americans.
Allowing the Trump administration to determine who counts as a citizen takes on even more weight in light of another likely unconstitutional executive order signed by the president on Tuesday, requiring DHS to create a "citizenship list" to determine who is allowed to vote in the 2026 election.
Given these extraordinary stakes, many observers fear that Trump’s appearance before the Supreme Court's deliberations on Wednesday is designed to send a message to the justices he's accused of being "disloyal."
Historian Ruth Ben-Ghiat called Trump's arrival at the high court an “intimidation tactic to remind judges of the costs of defying him.”
Josh Sorbe, a spokesperson for the Democrats on the House Judiciary Committee, said, "The separation of powers is pure fiction at this point."
Keep ReadingShow Less
'The Constitution Is Not a Suggestion': Supreme Court Told to Protect Birthright Citizenship
One critic warned that upholding President Donald Trump’s executive order “would create a permanent underclass of people born in the country but cut off from the rights that citizenship provides.”
Apr 01, 2026
As the US Supreme Court prepares to hear oral arguments Wednesday regarding President Donald Trump's executive order revoking birthright citizenship, several legal experts, advocacy groups, and commentators warned about the dire consequences that would come from not striking it down.
Michael Waldman, president and CEO of the Brennan Center for Justice at NYU School of Law, published an analysis on Monday explaining that, in an ideal world, the Supreme Court wouldn't even be entertaining arguments for upholding Trump's order because it so obviously violates the plain text of the US Constitution's 14th Amendment.
"Birthright citizenship is in the Constitution," wrote Waldman. "This has been the law for more than 150 years. The amendment overturned the notorious Dred Scott decision, which said that even free Black Americans could not be US citizens. The Supreme Court in 1898 confirmed the 14th Amendment’s plain meaning. In United States v. Wong Kim Ark, it ruled that children born here are citizens, even if their parents are not."
Waldman argued that "Donald Trump tried to Sharpie this out of the Constitution" with his executive order, but insisted that the 14th Amendment is "open and shut," making it easy for the Supreme Court to rule against the president.
The New York Times' Jamelle Bouie echoed Waldman's arguments in a Wednesday column, writing that "there are few lines in the Constitution that are as straightforward as the citizenship clause of the 14th Amendment," whose "explicit aim... was to settle the question of American citizenship for good."
Bouie also dissected assorted arguments made by right-wing legal scholars in support of Trump's executive order, finding that they fail to offer "any new evidence regarding the drafting of the 14th Amendment, the intent of its framers, or the public meaning as understood at ratification."
"The evidence in favor of the traditional view of the citizenship clause is overwhelming," Bouie added. "To rule otherwise is to say, in essence, that two plus two equals five."
Virginia Kase Solomón, president and CEO of Common Cause, argued that the Supreme Court must strike down Trump's order because "the Constitution is not a suggestion, and its guarantees do not shift with the political winds of any one president."
"When the courts allow one president to change the definition of American citizenship with a stroke of a pen, it puts every American citizen at risk," Solomón added. "The Supreme Court must reject these unconstitutional overreaches before they cause irreversible harm to our families and our nation’s future."
Garrett Epps, legal affairs editor at Washington Monthly, warned that failing to uphold the 14th Amendment would create "an exploitable non-citizen class" who would live in the country without any constitutional rights or protections.
Picking apart Trump aide Stephen Miller's remarks about denying citizenship to children of a "foreign labor class," Epps argued that the real goal of the Trump administration's attack on the 14th Amendment isn't strictly mass deportations, but the elimination of rights to an entire group of US-based workers.
"As a practical matter," explained Epps, "reinstating a hereditary, lifelong, inferior status—which, after all, is what removing 'full political rights, including welfare and the right to vote' would mean—recreates the conditions for the growth of a racialized slave economy."
TV host and activist Padma Lakshmi, writing in a Wednesday New York Times column, also pointed to the horrific impact that eliminating birthright citizenship would have on families across the country.
"If the Supreme Court doesn't block this executive order, it would create a mess of legal and logistical consequences," Lakshmi argued. "Confusion would replace certainty, opening the door to discrimination and a patchwork of rules governing noncitizens’ access to our society. Hundreds of thousands of children born in the United States would be thrown into legal limbo every year."
The end result, Lakshmi said, "would create a permanent underclass of people born in the country but cut off from the rights that citizenship provides."
Keep ReadingShow Less
Most Popular