John Roberts’ Birthright Citizenship Hubris

Last week’s release of the final batch of SCOTUS decisions produced one blockbuster that dominated the conversation: Trump v. Barbara, dealing with birthright citizenship. The result was not a surprise to me; I had predicted that the Court would rule against President Trump’s executive order. But I was disappointed in the rationale that the majority, in an opinion written by Chief Justice John Roberts, chose to employ. The decision deserves sustained criticism, much in the way that Roe v. Wade deserved—and received—such criticism. The existence of sustained public outrage is necessary for the Court to re-visit a precedent. Our goal must be for a future Supreme Court to overrule Trump v. Barbara, just as Dobbs overruled Roe v. Wade. Only we can’t afford to wait nearly 50 years for that to happen!

But let’s not fall into the trap of blaming the current Court, or John Roberts personally, or Amy Coney Barrett (who provided the fifth vote) entirely for a decision we don’t like. All Roberts’ opinion did was follow a prior precedent, albeit an ancient one from 1898, interpreting the muddled language drafted by the 39^th Congress, which framed the 14^th Amendment. Until President Trump issued the executive order at issue, 128 years passed since the Court’s ruling in Wong Kim Ark (1898). In that time, as untold millions of babies were awarded citizenship despite their parents’ status as non-citizens, Congress did not lift a finger to fix birthright citizenship, no one successfully waged a campaign to amend the Constitution, and no President showed any initiative to do what President Trump did. There is plenty of blame to go around.

As a result of a century-plus of acquiescence, interrupted only by President Trump’s MAGA insistence that controlling the nation’s borders meant taking citizenship seriously, John Roberts mistook the moment as a replay of Dred Scott v. Sandford (1857)–which is correctly viewed by historians as a misstep that may have pushed the nation toward Civil War—and in melodramatic fashion made a show of demonstrating that he is not Roger Taney, the Chief Justice who succeeded John Marshall only to earn eternal ignominy as the author of the worst decision in SCOTUS history.