This Could Be the Year the Supreme Court Pushes Back on Trump

On an intellectual level, this should be an easy case for the justices. Undocumented immigrants and visa recipients are indisputably “subject to the jurisdiction” of the United States. They can be taxed, arrested, fined, imprisoned, executed, and much more while on U.S. soil. There is also ample precedent supporting birthright citizenship, including Supreme Court rulings like 1897’s Wong Kim Ark v. United States.

To refute this notion, the Trump administration and some of its right-wing allies in legal academia have concocted a novel reading of the clause that instead grounds citizenship in “political allegiance” to the United States. This “scholarship,” which was almost entirely a bespoke creation to justify Trump executive order, is flimsy at best and in some cases outright embarrassing. (One of the top revisionist proponents, Kurt Lash, recently published an article where he ran a 19th-century congressman’s purported letter through multiple AI chatbots to glean its accuracy and meaning.)

It is hard to trust the Supreme Court to get this case right. The conservative majority’s track record is far from comforting. In 2024 alone, the justices butchered a different clause of the Fourteenth Amendment to allow Trump to run for a second term despite a constitutional bar on office-holding for insurrectionists. A few months later, Roberts and his conservative colleagues invented the concept of “presidential immunity” out of thin air, sparing Trump from a criminal trial before the election and facilitating widespread corruption in his second term.