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Alexis Madrigal: Welcome to Forum. I’m Alexis Madrigal.
Back in early 2016, when Justice Antonin Scalia died, Mitch McConnell refused to consider President Obama’s pick, Merrick Garland, saying the next president should have a say on the Supreme Court. Eventually, that slot went to Neil Gorsuch, nominated by President Trump.
Then came September 18, 2020. Remember that day? Joe Biden was mere days away from defeating Donald Trump, but hypocrisy notwithstanding, after Ruth Bader Ginsburg died, Mitch McConnell’s Senate ran through Amy Coney Barrett’s nomination. And since then, the court has had 6 conservative justices to just 3 more liberal ones.
That is to say, a Supreme Court term like this one was a very likely outcome after Ruth Bader Ginsburg died. While the Trump administration suffered some losses on core issues of American life, like citizenship, voting, immigration protections, gun rights, and the power of the presidency, the court showed just how far it has moved toward the president’s preferred view of things, which I suppose we still call conservative.
Here to talk with us about the lessons of the term, we’re joined by Cecilia Wang, national legal director for the ACLU. Welcome.
Cecilia Wang: Thank you, Alexis. Great to be here.
Alexis Madrigal: And we’re joined by Rory Little, emeritus professor of constitutional and criminal law at UC Law San Francisco. He’s a columnist for SCOTUSblog and a former Supreme Court clerk. Welcome, Rory.
Rory Little: Thanks, Alexis. Happy to be here with you.
Alexis Madrigal: Cecilia, let’s start with you. You argued the birthright citizenship case before the court as the national legal director of the ACLU, and the court did uphold the long-held right to birthright citizenship. How did it feel for you when you heard the opinion?
Cecilia Wang: Obviously, we were very relieved and had anticipated, based on the tenor of the oral argument and the strength of the arguments going into oral argument, that we would probably prevail.
It was the last day of the term. We had this victory in the birthright citizenship case, and all of the hundreds of thousands of affected families around the United States could breathe a sigh of relief and realize that the president cannot reinterpret a fundamental pillar of the Reconstruction Constitution at his whim.
It was a victory that was very sweet and one we’ll cherish for a long time.
Alexis Madrigal: Tell us a little bit about the legal issue that was at play here, in particular because it didn’t seem like it was really up for challenge until quite recently.
Cecilia Wang: You’re right about that.
Let’s start with the fundamentals. In the United States, from the time of the founding of our country, we borrowed the English common law tradition of nationality, which basically says that if you’re born in the territory of the sovereign nation, you are a citizen—or a subject in England and a citizen in the United States.
Of course, as that was implemented in the United States, the slave states excluded African Americans from birthright citizenship. It took a Civil War and the efforts of free Black Americans, who fought for birthright citizenship not just for themselves but for everyone, to win that core birthright citizenship principle for all of us.
The framers of the 14th Amendment constitutionalized birthright citizenship. After that, there were still those who contested the scope and meaning of the Birthright Citizenship Clause in the 14th Amendment. As anti-Chinese sentiment built up in the 1800s, the federal government wanted to exclude the children of Chinese immigrants from birthright citizenship.
In 1898, the Supreme Court decided a case that came out of San Francisco, United States v. Wong Kim Ark, and held that the 14th Amendment’s Citizenship Clause means what it says: that everyone born in the United States is a citizen regardless of their parents’ circumstances, with only very narrow exceptions. The main one is for the children of ambassadors.
That’s the principle that stood from 1868, when the 14th Amendment was ratified, through 1898, when the Supreme Court decided the issue in the Wong Kim Ark case.
Alexis Madrigal: Yeah.
Cecilia Wang: About 15 or 20 years ago, there were fringe white nationalists who tried to attack birthright citizenship, usually in the form of state bills they were trying to pass. But this was really a fringe theory until President Trump came along and issued his executive order on Inauguration Day in his second term in office and tried to rewrite this cherished, fundamental American principle of birthright citizenship.
Alexis Madrigal: Rory, Cecilia—that was magisterial. She obviously argued the case before the Supreme Court. But Rory, from your position as a legal scholar, was there a good argument against birthright citizenship? What were they standing on?
Rory Little: Alexis, I thought your lead was great, which is to say Trump’s appointments to the Supreme Court have totally transformed this court in a way that was politically hypocritical.
I want to answer your question by saying there was no good argument. There really was no good argument.
Let me give some credit where credit is due. First, Cecilia Wang—you just heard her. She’s very low-key, straightforward. If you want a master class in oral argument, somebody should tune in to the oral argument she made in this case. It was a master class in how to stay on your point and not get distracted by lots of hypotheticals, not get distracted by crazy theories, and just keep pounding on the plain language of the 14th Amendment. She deserves great credit for winning this case.
Then I want to give some credit to Chief Justice Roberts, who could have been distracted by the arguments the dissenters made in this case. But he closed with these very short sentences:
“Citizenship is the right to have rights, to freely participate in our political community. The framers of the Fourteenth Amendment extended that promise to every freeborn person in this land. We keep that promise today.”
This was a broad and historic ruling that should shut down these fringe theories. It probably won’t shut them down, but it should.
The dissenters tried to say that “within the jurisdiction of the United States” ought to mean someone who is domiciled here and should not include so-called birth visitors. There’s hardly any evidence that there are such people as birth visitors—that is, people who come here as tourists just to have a baby.
Justice Thomas wants to rewrite history. In fact, Justice Jackson wrote a long concurring opinion basically saying, “Let me tell you about the history of Black citizens and Black people participating in the formation of this policy back in 1868.” She is directly responding to Justice Thomas. Frankly, she’s saying, “There’s another Black person on this court, and let me tell you what this person thinks.”
Alexis Madrigal: Given all that, Cecilia, 4 justices seemed to think that birthright citizenship was not in the Constitution. What does this say about the nature of the court right now?
Cecilia Wang: To quote my predecessor, Steve Shapiro, we were exchanging emails about the decision. I said, “Wow. That was a close one—5–4 on the constitutional issue.”
He said, “Fifty years from now, people will just remember that we won this case. They won’t remember the vote count.”
I’ll start there just to put this in perspective. A win is a win.
I do think it’s disturbing that the dissenting opinions basically tracked the Trump administration’s arguments in the case. At the same time, they’re the same arguments the federal government made in 1898 in the Wong Kim Ark case.
That was a case where the government was very explicitly trying to exclude the children of Chinese immigrants based on their ancestry, ethnicity, and race. It was sort of a sub rosa part of the government’s arguments in this case. I wish there were more recognition that if you’re making the same arguments the anti-Chinese advocates made in the late 19th century, perhaps you’re making the wrong arguments in the 21st century.
I agree with Rory that I really appreciated Chief Justice Roberts’ majority opinion. At one point he says, in essence, that the dissenters are echoing the Trump administration’s argument that the framers of the 14th Amendment must have wanted to reject the English common law rule because that rule was about feudalism.
To the contrary, the chief writes—and this is what we argued—the 14th Amendment was about emancipation. As many of the amici and legal scholars of the 14th Amendment, including Professor Martha Jones, wrote so powerfully, and as Justice Jackson wrote so powerfully, President Trump had this politically savvy, cynical, manipulative argument that birthright citizenship under the 14th Amendment was only about extending citizenship to Black Americans.
Nothing could be farther from the truth. That argument tries to write out of history the work and the blood, sweat, and tears of free Black Americans who fought for universal birthright citizenship.
The fact that the dissenters echoed the government’s arguments along these lines is one reason they’re in the dissent. They’re on the losing side, and rightly so, because the arguments, as Rory said, could not be clearer. The original public meaning of the 14th Amendment was rooted in the principles of emancipation and universal citizenship.
Alexis Madrigal: We’re talking about the latest Supreme Court term with Cecilia Wang, national legal director of the ACLU, and Rory Little. We’ll be back right after the break.
