At Just Security, Marty Lederman (Georgetown): Counting the Votes in the Supreme Court’s Birthright Citizenship Decision. From the introduction:
Most commentators have described the Court as having split 5-4 on the constitutional question [in the birthright citizenship case]. Some have even warned that “conservatives now know they are only one vote away from eliminating birthright citizenship by judicial fiat.” Emboldened by the closeness of the vote, and by a suggestion in Justice Brett Kavanaugh’s separate opinion, President Trump and others have urged Congress to amend the federal birthright citizenship statute to parallel the Trump executive order, hoping that such legislative action might tip the scales with the Court.
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As I explain in this piece, the alleged 5-4 headcount in Barbara isn’t as clear—and certainly not as categorical—as it might appear at first blush. In fact, if one takes at face value the reasoning in the various dissenting opinions, the more accurate headcount is at least 7-2, and perhaps even 8-1, against the constitutionality of the central provision of the Trump order and H.R. 9633, which would deny birthright citizenship to children whose mothers had entered or remained in the U.S. unlawfully.
To be sure, one of the four Justices in question—Justice Samuel Alito—offered a reading of the Fourteenth Amendment, and of the Supreme Court’s landmark decision in United States v. Wong Kim Ark (1898), that would establish the constitutionality of the Trump order as to both categories of U.S.-born persons it describes—those whose mothers had entered or remained in the U.S. unlawfully, as well as those whose mothers gave birth while legally but temporarily in the country. Justice Alito therefore would clearly uphold the constitutionality of both prongs of H.R. 9633. Two of the other three dissenting Justices, however—Justices Clarence Thomas and Neil Gorsuch—adopted an alternative reading of the Constitution that would guarantee birthright citizenship for the vast majority of the children in the first Trump category, i.e., those born in this country to a woman who had entered (or remained in) the U.S. unlawfully. And although the fourth Justice, Justice Brett Kavanaugh, endorsed a more limited reading of the Fourteenth Amendment, akin to Justice Alito’s, he appears to agree with the majority of the Court that the Trump order is unconstitutional under the binding precedent of Wong Kim Ark, and Kavanaugh did not argue that it would be appropriate for the Court to disregard stare decisis to overturn that precedent (a precedent the Court has now reaffirmed 128 years later, thereby further entrenching the strength of its stare decisis status).
Therefore, based simply upon what the Justices themselves wrote in Barbara, it’s far from clear that there would be even three or four votes on the Court … in favor of the constitutionality of the centerpiece provision of [a narrow birthright citizenship statute].
Part I of this article describes the Court’s holding in Barbara and offers some important context for understanding the dissenting Justices’ opinions—including, in particular, why none of them relied upon the “original public meaning” of the constitutional text as the basis for endorsing the constitutionality of some or all of the Trump executive order.
In Part II, I discuss the rationales that each of the four dissenting Justices embraced and I explain, in particular, why the test that Justices Thomas and Gorsuch articulated would not deny birthright citizenship to most children born in the U.S. to women who had entered or remained in the country unlawfully. Part II also includes some discussion of why the dissenters’ views are wrong on the merits, although that’s not my principal focus here.
Professor Lederman’s post is especially helpful as a description of the dissents and an assessment of the extent to which they are or are not textualist/originalist in methodology.
RELATED: At Law and Liberty, Robert Natelson: Birthright Blunders (concluding that all of the opinions, including the majority, got some things wrong).
Posted at 6:02 AM