Justice Ketanji Brown Jackson said her colleague Justice Samuel Alito made a “good” point about the interpretation of U.S. v. Wong Kim Ark on Wednesday.
The point of agreement between the two typically opposed justices came as they were questioning ACLU legal director Cecillia Wang regarding birthright citizenship.”
“Can I offer a possible explanation for why, Justice Gray made a point of putting domicile in what he said was the holding of the case,” Alito said, referring to Wong Kim Ark. “There were many, many [migrants] who were horribly exploited, brought to the United States to work on the transcontinental railroad, to work in mines. they were worked to death. They were treated horrifically…They were overwhelmingly men. There wasn’t an indication that they were-that they would stay here. They could stay here. They didn’t have permanent homes. And the and the opinion is drawing a distinction between those two categories of people who would have been well understood at the time when Wong Kim Ark was decided.”
“No, Justice Alito, I don’t think that’s a plausible explanation for why domiciles mentioned in Wong Kim work. Because, again, the controlling rule of decision based on the English common law and cases from schooner exchange to lynch versus clerk to state versus manual, which was the North Carolina decision that said, look, the rule in the United States from independence on has been the English common law rule,” Wang said.
“But Miss Wang, isn’t that explanation, I take Justice Alito’s point, and I think he actually makes a good one in the sense that it could be that Justice Gray emphasized domicile to help the public accept the outcome of this case. You’re suggesting that the emphasis on domicile was not a part of the rule, meaning he wasn’t saying you had to be like a foreigner who is doing everything they can and who can’t be naturalized. But he might have emphasized those facts in this case, precisely because Chinese immigrants were unwanted, precisely because he had to get this out into the public, and people were going to say, whoa, you’re saying these people have to this this baby has to be a citizen. And so one could imagine that it was important from a standpoint of helping people accept this citizen rule under these circumstances, to emphasize that these particular people in this case were, in Justice Alito’s first category,” Jackson said.
“I think that is very possible, Justice Jackson and as evidence of that, I would point to the fact that if you look at the briefing in Wong Kim Ark, you’ll see that even though the parties had stipulated in the in the district court that Wong Kim Ark’s parents were domiciled in the United States, when the case came to the Supreme Court, the government’s brief argued that it was impossible for Chinese immigrants to have domicile because they expressed the view that was common among people who opposed immigration by Chinese nationals to the United States. There was a common view that Chinese people were inherently temporary sojourners in the country. And so I do think it’s possible Justice Alito and Justice Jackson, that he was trying to dispel that notion,” Wang said.
