My One Definitive Takeaway From SCOTUS Argument on Birthright Citizenship

Red State ^ | 05/15/2025 | Susie Moore

[SeekAndFind]

The Supreme Court heard oral argument on Thursday in three (consolidated) cases involving challenges to President Donald Trump's executive order regarding birthright citizenship. I listened to the argument and have a few takeaways that I'll share here, but there are some preliminary matters to address before I do that.

First, as explained previously, today's argument was not about the merits of the executive order (though they necessarily were discussed to a degree), nor was it about the merits of nationwide or universal injunctions in all contexts. 

Second, even the most learned legal scholars (which I most assuredly am not) will tell you there's no way to be certain which way and on what basis the court will rule based on oral argument. You can glean things about the way certain justices are leaning, and you can make an educated guess. But you cannot be certain. So...the following is simply that: an educated guess. 

Third, no matter the outcome, a lot of people will be irked with it.

All that said, I have several takeaways, one of which is definitive: Whatever the ruling is, it will not be a 9-0 decision. (Many assume that all or most Supreme Court decisions are sharply divided along party/ideological lines. This is not at all the case. In fact, for the previous (2023) term, 26 — almost half — of the court's decisions were unanimous. Thus far in the 2024 term, there have been 14 unanimous decisions out of 30.)

I say that with confidence because the tenor of the questioning from the justices made it clear to me that the three liberal justices — Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson — are not on board with the Trump administration's position here, while Clarence Thomas clearly is, and Samuel Alito (who was somewhat quiet for this argument) can be presumed to be based on prior indications. I'd also say that Brett Kavanaugh seemed inclined to agree with the administration, and John Roberts seemed to lean that way. 

The two unknowns to me are Amy Coney Barrett and Neil Gorsuch — which is why I'm not overly confident that the administration will pick up a win here. In fact, my initial instinct on it was that it would lose narrowly. I'm since reconsidering that, for reasons I'll get into momentarily. But if I'm being perfectly honest, my initial read was that Solicitor General John Sauer, while making a valiant effort here (no knock on his skills whatsoever), has a tall order with this argument. I would ask those who might bristle at that characterization to bear with me while I attempt to explain. 

The underlying merits are not a slam dunk — in either direction. There are strong legal arguments on both sides of the issue (and have been for decades). And keep in mind — there's a difference between what the constitutional language at issue provides and what many believe the policy should be. It is beyond obvious that the liberal wing of the court will — when and if the merits are reached — find birthright citizenship firmly enshrined in the 14th Amendment. (Sotomayor and Kagan both essentially said just that.) It is also fairly clear that at least two of the court's conservatives (i.e., Thomas and Alito) will not. 

It's the four in the middle who remain the wildcards on that. And because the merits argument is somewhat iffy, the administration's decision to run the nationwide or universal injunction question up the flagpole in this context is risky. In other words, if the majority of the justices are dubious about the administration winning on the merits and Trump's EO on this issue being held lawful, they may be hard-pressed to agree that limiting the lower court rulings to only the parties before the courts and essentially creating a patchwork of citizenship here but not there is justified. The understandable concern is that this will result in utter chaos in terms of the practical application of the rulings. Thus, this situation would arguably lend itself to a universal injunction (while others may not). 

On the other hand, if the administration is able to win on the nationwide injunction issue even in a case where they may not ultimately succeed on the merits, that makes their overall challenge of the mechanism (in multiple contexts) that much stronger. Or, as our friend Bill Shipley notes, "High risk-high reward" tactical decision. 

I think this is the answer.

If there is no basis for a nationwide in junction in a case where the Trump Admin. EO is the most vulnerable on the merits, then the answer in other cases on the issue of nationwide njunctions -- where the EOs are on much more solid ground -- become a fait accompli.

But that is a high risk-high reward tactical approach.

https://t.co/iqekD0VDhz— Shipwreckedcrew (@shipwreckedcrew) May 15, 2025

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RELATED: It Begins: 18 States Sue to Block Trump's Birthright Citizenship Ban

Trump Administration Asks SCOTUS to Weigh in on Birthright Citizenship Ban

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Now, Ship has his own predictions on the outcome here, but I'll share why I think this could, in fact, come down in favor of the administration. 

Margot Cleveland hits on it here with her own takeaways from the argument. Justice Kavanaugh did, indeed, through his questioning, highlight the weakness of the argument that nationwide injunctions are a necessity. (There are other methods of achieving the same/similar result, which Sauer argued repeatedly.) Even while the court seemed in some respects anxious to get to the merits of the case, it did agree to take these cases up on this specific issue. And the majority of the justices have previously expressed a dim view of nationwide injunctions. 

All of which is to say, a 5-4, possibly even 6-3, decision in favor of the administration on this issue could very well be the ultimate outcome here. (I just won't be completely shocked if it tips the other way.) 

Two last observations: 

1. Justice Jackson actually had some good questions today, I thought. (She doesn't always, but the reasoning she expressed today and trying to suss out some of the issues, was sound in my view.)
2. Justice Sotomayor is, by far, the most caustic of the justices when questioning the attorneys — particularly Sauer in this case. She frequently cut him off (so much so that, at one point, one of the male justices — possibly even Chief Justice Roberts — interrupted her to ask, "Can I hear the rest of his answer?")

And then I'll end with an example of why Justice Gorsuch remains my favorite. (Maybe second favorite — I do adore Justice Thomas, too.) He manages to combine dad joke humor and lawyer humor all in one:

"I need all the amici I can get!" 😂

— Justice Gorsuch.— Susie Moore ⚾️🌻🐶 (@SmoosieQ) May 15, 2025

[oldplayer]

This is the key case to all others. If so-called birthright citizenship continues to be an avenue to citizenship for the baby and family, our culture and nation will not survive. None of the Bill of Rights will remain.

[Farcesensitive]

The commas make it clear it’s a list.
Ambassadors are naturally foreigners so it would be redundant to state that if it was limited to them.

[MMaschin]

Thanks! I was going to post the same thing. The purpose of the comma in the English language is to separate elements in a list.

The listing comma is used as a kind of substitute for the word and, or sometimes for or. It occurs in two slightly different circumstances. First, it is used in a list when three or more words, phrases or even complete sentences are joined by the word and or or; we might call this construction an X, Y and Z list:

[MMaschin]

Without the commas, the sentence would read -

This will not, of course, include persons born in the United States who are foreigners OR aliens OR who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.

It's clear that only children of those legally settled as Citizens or legal immigrants were intended to receive Birthright Citizenship.

[dfwgator]

Commas save lives:

Let’s eat Grandma!

Let’s eat, Grandma!

[butterdezillion]

Do you have a link where that quote comes from, and the greater context of it? I wonder if there was a transcription error that left out the word “or”. Was this originally spoken, or written?

Just for reference, here is the quote again:

“This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”

Lists separated by commas can mean different things, and usually the word “and” or “or” before the concluding item in the list tells you what the relationship of the list items are to each other. Usually if there’s not “or” or “and” in the list, the list itself all describes one thing.

But maybe that’s just if it’s adjectives being used. For instance, “This list does not include people who are fat, lazy, ugly children of ambassadors.” In that list all the descriptors describe one person. With a list of nouns it seems different. For instance, “This list does not include people who are pacifists, liberals, who are children of ambassadors.”

The other thing that is throwing me is the inconsistency in the use of the word “who”. It is used for “who are foreigners” and “who belong to the families of ambassadors” but not to the word “aliens”, which allows the possibility that the word “aliens” could be a descriptor for the word “foreigners” - as if the commas could be replaced by hyphens: “persons born in the United States who are foreigners - aliens - who belong to the families of ambassadors.”

I don’t know. I think the Founders meant something by “subject to the jurisdiction thereof”, and this statement about the spirit of the law speaks of “persons born in the United States who are foreigners” - which says straight out that you can be born here but still be a foreigner. Unless there is a transcription error, though, I think this passage could be interpreted either way. It could be interpreted to mean that the word “or” is implied between all the listed items, or it could be interpreted to mean that the word “and” is implied. The absence of the connector makes the quote very muddy to interpret. If the absence of the word “who” as described above means that “aliens” further clarifies the word “foreigners”, then this isn’t a list at all but simply persons who are aliens who belong to the families of ambassadors.

I think it would take more context to clarify how this should be interpreted.

[Teacher317]

if a Mexican mother gives birth in the US does her Mexican citizenship make her child also a Mexican citizen?

For most of human history, time and parental intent were the deciding factors. Was it simply during a visit, and they'll be home soon to get the paperwork for home citizenship for the baby? Or do the parents intend to follow the long and laborious process of legally becoming citizens in the new nation, and thus the child should be as well?

However... With illegals, they very clearly are AVOIDING doing the proper legal work required to become citizens, and therefore their children should be excluded from the automatic stamp of approval. Attempting to break the laws of a nation to gain benefits for your children can put those children in a very difficult bind on their citizenship status... but that bind is not the responsibility of the US to resolve for them. That bind should help serve as a significant deterrent to parents eager to break the laws of any other nation.

[butterdezillion]

My mind is fuzzy right now, but somehow the distinction between natural-born citizens and non-natural-born citizens comes into play too. If simply being born here makes you a natural-born citizen, as seems to be the current interpretation - then why not just say “citizen”?

Also, the 14th Amendment was passed in response to the Dred Scott decision which stated that because of the 3/5ths Compromise Negroes are not recognized in the US Constitution as legal “persons” with standing to file for legal action, and are thus classified as human livestock. The clear intent was to say that if you are a biological person who was born here you are a citizen even if you are Negro.

Also, thinking about what “jurisdiction” means, are children born on Native American reservations US citizens? The US doesn’t have jurisdiction on reservations, right? But if someone who lives on a reservation commits a crime outside of the reservation, does the US have jurisdiction to prosecute them?

And maybe somebody can clarify. If I gave birth in France, would my child be a citizen of France as well as a citizen of the US as conferred by my own US citizenship? Is the US the only place that (for now at least) automatically confers dual citizenship on anybody born here - the citizenship of the parent AND the citizenship of the US?

Where in the Constitution does it authorize Congress to decide that US citizenship can be conferred to a child through the citizenship of the parent(s) if the child is born outside of US soil? Or was that the understanding that all the civilized world basically had - that if you are a citizen visiting another country you and any children born to you are considered visitors there unless and until you naturalize?

[butterdezillion]

I think the case of the parents who chose to take their children with them when they were deported is important for people to understand legally. The US did not deport the child. The parents put themselves in the position where the child can either be with the parent, or be in the US, but not both.

If prospective illegal immigrants realize that is the choice they will face, maybe they will choose not to put themselves in that position.

[joshua c]

are you including roberts in you count?