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Friday afternoon brought a significant development in President Donald Trump’s quest to extra-constitutionally restrict birthright citizenship, when the Supreme Court granted cert in Barbara v. Trump. The case will be heard early next year. Last year’s birthright citizenship case was a technical—but vitally important—dispute around the powers of federal district court judges. This time, the administration is swinging for the fences in an effort to do away with the substance of the 14th Amendment once and for all. On this week’s Amicus podcast, co-hosts Dahlia Lithwick and Mark Joseph Stern discussed the surreal proposition that a case that should never exist is now poised to be taken seriously as a matter of law. A portion of their conversation is excerpted below, edited and condensed for clarity.
Mark Joseph Stern: This is a clean vehicle for the justices to decide whether the Constitution does, in fact, grant birthright citizenship to virtually all people born here. Trump issued an executive order on his first day back in office, on Jan. 20, 2025, that purported to strip birthright citizenship from the children of immigrants who are here on temporary visas, as well as undocumented immigrants moving forward. That, of course, violates the plain text of the 14th Amendment, a federal statute, and more than 120 years of Supreme Court precedent. But he did it anyway.
We thought we were going to get a big decision on this last term, but in Trump v. CASA, the Supreme Court ended up taking away the nationwide injunctions that had blocked the policy instead. This time around, Barbara v. Trump is a pretty clean shot at the fundamental question on the merits: Can Trump do this? The Justice Department is not trying to fight any kind of procedural or equitable issues here. This was a class action, and the administration accepts that. The lower courts ruled against the government. The administration is saying, “Just give us a win and tell us that we can implement this policy.” So this is the fight: This is the big one we’ve been waiting for after the fake out last year. By the end of June 2026, the Supreme Court will have told us whether or not we still have a 14th Amendment.
Dahlia Lithwick: This serves as a really useful marker of where we stand in time because a year ago, going for the jugular on birthright citizenship was an utterly ludicrous argument, yet a year and change later, we are about to be told by the U.S. Supreme Court that there are sober, meritorious arguments on both sides. So as a way of noting how quickly things go from off the wall to on the wall, this is a good reminder that that which was unthinkably bonkers a year and a half ago is now being entertained at the highest court in the land.
Mark Joseph Stern
The Supreme Court Is About to Hand Trump Insidious New Powers
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The only thing I would add to that is a sprinkling of shame for the law professors and Republican lawyers who have spent the last year racing to try to put together some kind of academic theory to explain why Trump should be able to ban birthright citizenship. They have utterly failed. Their arguments are frivolous and meritless. But it just shows you how law works now. There’s this entire apparatus, this infrastructure, on the right devoted to concocting bogus, originalist arguments to align the Supreme Court with the Republican Party platform. It is, frankly, nuts that we are here talking about the Supreme Court deciding an issue that was resolved after the Civil War and resolved again at the end of the 19th century by an otherwise pretty racist Supreme Court, which said even we have to acknowledge that the children of immigrants get birthright citizenship. And here we are in 2025, and this is a live issue. That fact makes this whole episode something of a win for Trump because it is disgusting that we even have to have this conversation.
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Trump Just Told Us What He’ll Do With the Dangerous New Powers the Supreme Court Is About to Give Him
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The Supreme Court Just Took a Case That Would Have Only Recently Been Unthinkable
I do want to sound a note of optimism though: Every lower court ruled against the government in this case, and a bunch of different lawsuits had been filed. There were no wins for the Trump administration. The judges did admirable work laying out the historical record, saying, “This is a stinker, this is a loser.” I would still put money on the Supreme Court siding with those lower-court decisions. I’m not as confident as I was a year ago, but I still think that the force of the arguments against Trump’s policy is so overwhelmingly strong that even the Supreme Court isn’t going to want to try to fight it.
Indeed this case might even provide an opportunity for the justices to try to say, “Look! We’re neutral! We aren’t in the tank for Trump, we ruled against him here.” They can use it as cover while they rule for him in almost every other case. Maybe that’s not as optimistic as I actually thought it would be. But I do still think that as horrible as it is we’re having this discussion, at the end of the day, birthright citizenship will be affirmed.
