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The Supreme Court’s 5–4 Vote in the Birthright Citizenship Case Is a Scandal

11 0
30.06.2026

This is part of Opinionpalooza, Slate’s coverage of the major decisions from the Supreme Court. Keep up with all of our Supreme Court coverage and analysis by signing up for weekly email roundups. The best way to support our work—and unlock exclusive legal analysis—is by joining Slate Plus. (If you are already a member, consider a donation or merch!)

On Tuesday, the Supreme Court ruled that the first sentence of the 14th Amendment means exactly what it says: Birthright citizenship is the nation’s fundamental law, and Donald Trump cannot repeal it via executive order. The vote was 5–4. This outcome is, of course, a relief. But the margin is a scandal. It is nothing short of stunning that Trump came one vote away from persuading the Supreme Court to repeal the bedrock of the Reconstruction Amendments based on a brazenly partisan contortion of their text and history. A view held only by fringe, far-right nativists until very recently has secured support from four of the nine members of the court: Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh. This is a shocking development that should upend all expectations that this court can be trusted to apply the most basic constitutional guarantees when a Republican president seeks to nullify them. If a theory flatly rejected by all serious legal scholars and historians can come one vote away from success, no rights are safe. Everything is on the table.

Start with the good—because it really is worth celebrating, however cautiously: Chief Justice John Roberts’ majority opinion in Tuesday’s case Trump v. Barbara gets it exactly right. The United States inherited universal birthright citizenship from England and maintained it after the Revolution, with the glaring exception of slavery. Southern states refused to........

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