5 things to watch as Supreme Court weighs birthright citizenship

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Keep reading for our interview with an American Civil Liberties Union (ACLU) attorney who is the challengers’ counsel of record. 

President Trump is headed to Supreme Court this morning to see up close when his bid to end birthright citizenship falls into the justices’ hands.

The face-to-face moment will make Trump the first known sitting president to attend an oral argument.

It raises the stakes in a moment when the Supreme Court was already preparing for one of its most direct confrontations yet with Trump on his second-term agenda, after months of emergency rulings that have largely sided with the president.

The justices will weigh whether Trump’s Day 1 executive order clamping down on the long-held principle of birthright citizenship is legally sound.

The directive restricts birthright citizenship for children who don’t have at least one parent with citizenship or permanent legal status.  

Its consequences, immigration advocates warn, could be dire. But the Trump administration says bestowing citizenship on virtually anyone born on U.S. soil incentivizes illegal immigration and that the Constitution has, for decades, been misread.  

Here are five things to watch out for during the arguments.

1. The impact of Trump’s attendance

Trump’s attendance has become a last-minute wildcard for the argument.

“And I’m going,” the president said in the Oval Office on Tuesday when asked about the case.

“I think so, I do believe,” Trump said, “because I have listened to this argument for so long.”

His official White House schedule has him at the Supreme Court for the 10 a.m. arguments.

It’s common for plaintiffs or even sometimes administration officials to sit in for an argument. But they are often sat in the back of the room, and it’s not always clear the justices realize they are there.

The justices will easily recognize Trump, of course, not to mention his accompanying Secret Service detail.

The unprecedented moment comes as Chief Justice John Roberts attempts to keep the court above the political fray, even as the president steps up his criticisms.

Last week, Roberts during a public talk condemned “dangerous” personal attacks on judges, saying they have “got to stop.” The chief did not name Trump, but the comment came after the president called for Republican lawmakers to pass a crime bill cracking down on “rogue judges,” whom he derided as “criminals.”

Trump in particular has intensified attacks against the high court recently, including some of his own appointees. The president remains enraged by the court’s tariffs decision, and he is now turning his attention to the birthright citizenship battle.

On Monday, Trump wrote on Truth Social that birthright citizenship is “not about rich people from China,” but instead, the “babies of slaves.” He blamed courts for interpreting the law as anything otherwise, saying “dumb judges and justices will not a great country make.”

“The World is getting rich selling citizenships to our Country, while at the same time laughing at how STUPID our U.S. Court System has become (TARIFFS!),” Trump wrote.  

Trump has been in the Supreme Court twice before, for the investiture ceremonies of two of his court nominees.

But the president has long expressed a desire to attend oral arguments involving him. He wanted to go to the Supreme Court’s presidential immunity arguments, but he was on criminal trial in New York at the time and the judge there didn’t let him.

And when tariffs came before the court earlier this year, Trump floated going before opting against it.

Now, he is poised to finally make his appearance.

2. How broadly the justices interpret Wong Kim Ark

An 1898 Supreme Court precedent, United States v. Wong Kim Ark, will loom large. Watch if the justices think Trump’s order complies with it. If they do, that’s a good sign for the president. 

In that decision, the court ruled Wong Kim Ark was a citizen. He was born in San Francisco to Chinese citizens.  

More than 125 years later, the challengers to Trump’s executive order say that precedent is the start and end of their case.  

The liberal justices already signaled sympathy last year, when the case came to them to decide if judges could issue nationwide injunctions. 

“As far as I see it, this order violates four Supreme Court precedents,” Justice Sonia Sotomayor said at the time. 

As Justice Elena Kagan peppered the government with questions, she told its lawyer to “just assume you’re dead wrong.” 

The administration hopes to convince at least five justices that the challengers overread the precedent. The administration says it only applies to noncitizen parents with permanent residence in the U.S. That’s not the case for migrants in the country illegally. 

“That limit was central to the analysis; references to domicile appear more than 20 times in the opinion,” Solicitor General D. John Sauer wrote in court filings. 

3. Which scholars the justices namedrop

Trump’s executive order and its domicile requirement upend the conventional understanding of the 14th Amendment, igniting a debate among legal scholars. 

Watch to see if the justices signal agreement with the research of conservative professors who’ve defended the president’s order. That would be a good signal for Trump. 

Ilan Wurman, a University of Minnesota professor, is arguably the most prominent name to watch.  

Some other allies to listen for: Georgetown University professor Randy Barnett, New York University professor Richard Epstein, University of Richmond professor Kurt Lash and John Eastman, who is arguably most known for his efforts to block certification of the 2020 presidential election but has long argued the Citizenship Clause has been misinterpreted.  

The American Civil Liberties Union will take the lectern to argue the other side on Wednesday. They have plenty of allies, too. 

The list to watch includes professors like Northern Illinois University professor Evan Bernick, Boston University professor Jed Shugerman and Georgia State University professor Anthony Michael Kreis. Groups like the Cato Institute also oppose Trump’s order. 

4. If the justices express practical concerns

The Supreme Court didn’t opine on the legality of Trump’s order last year when the justices got involved to decide if judges can issue universal injunctions blocking presidential policies nationwide. 

However, Justice Brett Kavanaugh at those oral arguments previewed concerns about the practical consequences for when the merits reach the court. 

Watch on Wednesday to see if he raises alarm again, and if any of the other conservative justices do the same. 

“What do hospitals do with a newborn? What do states do with a newborn?” Kavanaugh grilled Sauer, the solicitor general,last year. 

As Sauer suggested federal officials would have to figure it out, Kavanaugh kept coming with follow-up questions. 

“How?” “Such as?” “For all the newborns?” he pressed at points. 

“Again, we don’t know because the agencies were never given the opportunity to formulate the guidance,” Sauer eventually told him. 

Look out if Sauer on Wednesday has any more details on how it would play out to assuage Kavanaugh’s concerns. 

5. If the justices focus on a 1940 law

Watch to see if the justices focus on the Constitution or statute. 

The primary focus of the case is whether Trump’s executive order violates the Constitution’s 14th Amendment, which was ratified following the end of the Civil War. 

But the justices have a second option. They could merely rule Trump’s policy violates a 1940 statute Congress passed that codified the 14th Amendment. 

The challengers say even if Trump is right on the Constitution, the justices should adopt the prevailing understanding Congress had when it copied the language. And they argue that understanding would’ve been citizenship extended to virtually anyone born on U.S. soil. 

Click here to dive deeper on the statutory route the court could take.  

Welcome to The Gavel, The Hill’s weekly courts newsletter from Ella Lee and Zach Schonfeld. Reach out to us on X (@ByEllaLee, @ZachASchonfeld) or Signal (elee.03, zachschonfeld.48). Sign up here.

ACLU sounds alarm on what a Trump win would mean 

Advocates for maintaining birthright citizenship have warned that a win for Trump would have a devastating ripple effect.  

The Gavel chatted with Cody Wofsy, deputy director of the ACLU’s Immigrants’ Rights Project, to get a better picture.  

Wofsy is the counsel of record at the Supreme Court for the mothers who are the plaintiffs in Wednesday’s blockbuster case. 

The most immediate harms would be faced by babies, he said.  

Their citizenship would be stripped away, exposing them to arrest or deportation despite having been born in the United States. They would be denied passports and Social Security number access, and eventually, would be denied the right to vote, serve on juries and otherwise benefit from the advantages of citizenship. 

Trump’s order would have affected babies born 30 days after it was issued, but it hasn’t yet gone into effect.  

Beyond babies, Wofsy expressed concern that people whose citizenship has been called into question by the Trump administration could also face heightened scrutiny. 

“The government says that it’s rewriting of the Constitution has always been the rule, and that means that it’s passing a shadow over the citizenship of millions and millions of people who have lived their entire lives in this country as American born citizens, based on who their parents — or maybe their grandparents, or their great grandparents —  might have been,” the ACLU lawyer said. “That is an incredibly grave undertaking.” 

As we noted earlier, Trump has said that birthright citizenship is “not about rich people from China,” but instead, the “babies of slaves,” a suggestion that the 14th Amendment was intended to grant citizenship to Black Americans alone following the conclusion of the Civil War. 

Wofsy refuted the argument, saying that the people who framed the constitutional provision and their allies sought a “fundamental promise of universal inclusion.” 

A ruling in favor of the government would declare “open season” on questioning the citizenship of fellow Americans, he said. 

“It’s going to be people of color, communities of color, that are going to be the targets of those questions and those doubts,” Wofsy said. “It would be a signal that American citizenship is shifting from one of equality and inclusion of every person born in this country to certain people counting as real Americans and others not.” 

Congress eyeing US attorneys checkmate for Trump  

The Trump administration is at a standstill with the judiciary in its fight to retain loyalist U.S. attorneys, but Congress may soon establish an escape hatch for the president.  

Trump and the courts have been deadlocked on who has the authority to fill the critical positions as Senate confirmations stall for some of his most loyal nominees and their temporary tenures expire.  

It caused top federal prosecutors in New Jersey, Nevada, California, New York and Virginia to be disqualified by judges who found they were unlawfully serving too long in their posts. But last week, the House Judiciary Committee advanced a bill that would make it easier for Trump to keep his picks in their positions.  

The legislation, approved 12-11 along party lines, would eliminate district court judges’ power to appoint temporary U.S. attorneys upon the expiration of a prosecutor’s interim term.  

Federal law as it stands lets the attorney general pick a prosecutor to serve for 120 days, but if that clock runs out before they’re confirmed by the Senate, the selection task falls to district judges until the vacancy is filled. That power would be wiped away if the bill becomes law.  

It’s not clear that the bill would see success in the Senate.  

Trump and his allies have blamed the Senate’s longstanding blue slip process, which allows home-state senators to veto presidential nominees to district courts and U.S. attorney offices, for the delays which have resulted in the disqualifications of prosecutors. 

However, both Republican and Democratic senators alike have defended the practice.  

5 top docket updates    

SCOTUS rules against ‘conversion therapy’ ban: The Supreme Court sided 8-1 with a Christian counselor challenging Colorado’s ban on “conversion therapy” on free speech grounds. Justice Ketanji Brown Jackson was the lone dissenter. 

Anthropic notches win: A federal judge sided with Anthropic in its fight with the Pentagon, blocking its designation of the artificial intelligence company as a supply chain risk, for now. 

ICE in hot seat: A federal judge ordered the Trump administration to preserve all records after DOJ said it made a “factual error” in a case challenging the ability to arrest migrants as they appeared for immigration court hearings. 

Big Tech’s big loss: A California jury found social media giants Meta and YouTube liable in a landmark social media addiction trial, determining the companies were negligent in their design or operation of the platforms.  

Trump ballroom blocked: A federal judge halted construction on Trump’s $400 million White House ballroom project, saying no statute “comes close” to granting the president the authority he claims to have to build it.

Anything’s possible: Impossible Foods, the plant-based meat-substitute company, owes $3.25 million in damages to influencer Joel Runyon and his company, Impossible X LLC, for infringing several of his “Impossible” trademarks. In response to the news, Runyon wrote on X: “”It always seems IMPOSSIBLE until it’s done.” 

Judge Judy legacy: Adam Levy, the son of former judge and TV star Judy Sheindlin, better known as Judge Judy, is set to star in a new legal series, “Adam’s Law,” to run on CBS.  

Not here to make friends: TMZ reported that five contestants competing in The Bachelorette season featuring Taylor Frankie Paul, which was cancelled over an alleged domestic violence scandal, are weighing legal action against ABC and Warner Bros. Discovery.  

Claude not replacing SCOTUS justices: Adam Unikowsky, a prominent advocate in the Supreme Court Bar for incorporating AI more in the legal field, got a peculiar question from Justice Samuel Alito during a case Unikowsky argued on Monday. “Just out of curiosity, do you think we should ask Claude to decide this case?” Alito joked. Unikowsky responded, “No. I adhere to the wise judgment of this Court.” 

Cases the Supreme Court is taking up — or passing on — this term.  

IN: Civil procedure dispute in Fulton County 

The Supreme Court took up one new case at its closed-door conference.  

It’s a technical dispute involving “affirmative defenses,” or facts offered by a defendant that would defeat a lawsuit, even if all the allegations are true.  

For example, a theme park sued by an injured attendee could point to a legal waiver it had them sign when buying a ticket. 

At issue is a rule for affirmative defenses that applies to federal lawsuits. A party “must…state any” affirmative defenses when it responds to a pleading. 

In Younge v. Fulton Judicial Circuit District Attorney’s Office, the Supreme Court will decide if that rule forbids defendants from raising such a defense in a summary judgment motion, if they had not raised it earlier when filing a document known as an answer.  

OUT: 1998 murder case and Tiger King 

Last week, we flagged Skinner v. Louisiana as a petition to watch. 

The court has decided not to take it up. But Justice Sonia Sotomayor was working behind the scenes on a lengthy dissent. 

She said her colleagues were wrong to not hear James Skinner’s bid to wipe his conviction in the 1998 murder of a 16-year-old boy.  

A decade ago, the Supreme Court wiped Skinner’s co-defendant’s conviction by ruling the prosecution didn’t meet its constitutional obligation to turn over favorable evidence to him. 

“Yet, Skinner remains incarcerated—and may remain incarcerated for the rest of his life—even though the prosecution failed to disclose the same favorable evidence to him in connection with his case,” Sotomayor lamented. 

Skinner’s petition got support from groups like the Cato Institute and Innocence Network. Louisiana urged the court to turn away his appeal, saying that Skinner still couldn’t overcome testimony that he had confessed. 

Speaking of alleged evidence violations at criminal trials, the court also declined to take up “Tiger King” star Joe Exotic’s appeal of his conviction. 

He was convicted for his role in a murder-for-hire plot against rival animal rights activist Carole Baskin, another star of the Netflix show. He said the government shaped false testimony and didn’t disclose certain evidence to him. 

That one didn’t merit any commotion. The justices turned away Maldonado-Passage v. United States without comment. 

Petitions for the Supreme Court to take up cases that we are keeping a close eye on.  

Veterans’ benefits: Army veteran Floyd Johnson, who was convicted of several felonies, is petitioning the justices to rule that incarcerated veterans may sue Congress to challenge the constitutionality of a veterans’ benefits law. Johnson was diagnosed with post-traumatic stress disorder (PTSD), but federal law limits his disability payments because of his incarceration. A lower court ruled the Veterans’ Judicial Review Act bars his lawsuit challenging the provision. The case is Johnson v. United States Congress. 

Don’t be surprised if additional hearings are scheduled throughout the week. But here’s what we’re watching for now:  

The Supreme Court will hear oral arguments over whether Trump’s restrictions on birthright citizenship are constitutional. The case is Trump v. Barbara. 

A federal judge in Washington, D.C., is set to hold a preliminary injunction hearing in a challenge to Trump’s executive order targeting foreign individuals deemed to have assisted the International Criminal Court’s pursuit of “protected persons.” 

A federal judge in Manhattan is set to hold a hearing to consider whether to delay the trial of Luigi Mangione, the man accused of killing United Healthcare CEO Brian Thompson.  

A federal judge in Washington, D.C., is set to hold a preliminary injunction hearing in a challenge to the planned erection of a monumental arch in DC’s Memorial Circle. 

The Trump administration faces a deadline to submit its written brief in challenges to the president’s new tariffs under Section 122. 

The Supreme Court is set to announce orders.  

The U.S. Court of Appeals for the 11th Circuit is set to hear oral arguments over a judge’s order blocking the construction of “Alligator Alcatraz” in Florida and requiring it be shut down within 60 days. 

The U.S. Court of Appeals for the 9th Circuit is set to hold arguments over whether to stay a judge’s order barring certain tactics used against protestors outside Portland’s Immigration and Customs Enforcement building. 

The U.S. Court of Appeals for the 1st Circuit is set to hear oral arguments in several university and education organizations’ challenge to the Department of Energy’s cap on indirect costs. 

A federal judge in Washington, D.C., is set to hold preliminary injunction hearings in two cases challenging Federal Trade Commission investigative demands that included statements on gender-affirming care.  

A federal judge in California is set to hold a hearing in a lawsuit challenging the Trump administration’s suspension of various grants pursuant to Trump and DOGE directives.  

The New York Times’s Abbie VanSickle and Julie Tate: In Supreme Court Justices’ Histories, a Story of Immigration in America 

Bloomberg Law’s Jacqueline Thomson: Judiciary Office Buyouts Lead to ‘Critical’ Staffing Shortages 

WIRED’s Vittoria Elliott: Why ICE Is Allowed to Impersonate Law Enforcement 

The Associated Press’s Morgan Lee: Verdicts against social media companies carry consequences. But questions linger 

Fordham University School of Law’s Thomas Lee: The Citizenship Clause’s Residence Requirement 

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