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Some media outlets reported on Tuesday that the Supreme Court ruled in favor of birthright citizenship by a 6–3 vote. But that’s not quite right: The court held that the 14th Amendment guarantees birthright citizenship to the children of immigrants only by a 5–4 margin. Justice Brett Kavanaugh in fact dissented from that holding, alongside Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch. But unlike that trio, Kavanaugh found that Donald Trump’s executive order violated a federal statute that, in his view, grants citizenship to immigrants’ offspring. At the same time, the justice all but invited Congress to “amend” that statute “or otherwise enact new legislation” that strips automatic citizenship from the children of “those unlawfully or temporarily in the country.” Kavanaugh’s position means that the court actually affirmed the traditional understanding of the 14th Amendment by the barest 5–4 margin. If Trump replaces any member of the majority, Tuesday’s core constitutional holding will be extraordinarily vulnerable to reversal.

On a pop-up bonus episode of Amicus for Slate Plus members, co-hosts Dahlia Lithwick and Mark Joseph Stern discussed Kavanaugh’s split decision and its ominous implications for future attempts to rewrite the meaning of the 14th Amendment. A preview of their conversation, below, has been edited and condensed for clarity.

Dahlia Lithwick: Kavanaugh always wants to get in that Solomonic pose, and today he split the baby again, leaving the court 5–4 on the constitutional issue but 6–3 on the statutory question. He certainly made it plain that if Congress wants to go ahead and revoke birthright citizenship, that’d be cool with him. 

Mark Joseph Stern: It’s odd, because the federal statute in question........

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