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From Dred Scott to Wong Kim Ark: The Historical Arc

Roberts's majority opinion does not merely settle the legal question — it walks through the entire historical arc of American citizenship law, from English common law through slavery, emancipation, and the post-Civil War effort to enshrine equality into the Constitution.

The opinion devotes particular attention to the "odious" 1857 Dred Scott decision, which denied citizenship to Black Americans and held that "blood, not soil" determined who belonged to the political community. The 14th Amendment was drafted specifically to reverse that decision, codifying citizenship for "all persons born or naturalized in the United States, and subject to the jurisdiction thereof."

"Children born in the United States to parents unlawfully or temporarily present are 'subject to the jurisdiction' of the United States and are citizens at birth under the Fourteenth Amendment's Citizenship Clause," the majority concluded.

In a concurring opinion, Justice Jackson wrote with particular force about what the ruling preserves. "The 14th Amendment's universalist aims should forever be the death knell for this kind of claim — one that seeks to make bloodline the marker of birthright," she wrote. "The America that was reborn from the rubble of the Civil War simply does not countenance that inequitable result. Thankfully, a majority of the Court remembered this today, and has dutifully preserved the most basic animating principle of our Nation's founding — that all human beings are created equal — once more."

The Dissents: Thomas, Alito and a Different Vision of Citizenship

Justice Thomas's marathon dissent staked out a starkly different historical reading. He argued that Black Americans were entitled to citizenship specifically because they had "no other homeland" or competing national allegiance — a rationale he contended does not extend to "the children of foreign temporary visitors."

Justice Alito, in his own dissent, called the ruling "one of the most important" in the court's history while declaring flatly that "the Court has made a serious mistake." Both Alito and Kavanaugh pointed toward Congress as an alternative path forward. Kavanaugh, in his partial concurrence, wrote that while he did not believe the executive order violated the Constitution, he believed it violated federal statute — and that Congress retains the power to legislate exceptions to birthright citizenship. "But Congress has not yet done so," he noted.

The Domicile Argument That Didn't Hold

A significant portion of the Trump administration's legal strategy rested on the concept of "domicile" — the idea that permanent residence, not mere physical presence, should determine constitutional citizenship. The argument drew on the landmark 1898 case United States v. Wong Kim Ark, which held that a child born to Chinese immigrant parents with permanent domicile in the US was a citizen at birth.

The justices were visibly skeptical of this argument during oral arguments. Roberts at one point described part of the government's reasoning as "very quirky," while Kagan noted the administration was relying on "pretty obscure sources" to construct its case. In the written opinion, Roberts was unsparing: "The Court exhaustively canvassed the text and history of the Citizenship Clause and at no point identified any evidence that the ratifiers thought themselves to be imposing a domicile limitation." He added that claims the term carried a more expansive, allegiance-based meaning rested on "scant evidence" for what he called a "dramatically revisionist view."

The Washington Post and Politico have both reported that the administration's legal theory draws in part on arguments originally advanced by white supremacist legal scholars in the late 1800s, with John Eastman — the disbarred attorney who worked with Trump to overturn the 2020 election — among the key contemporary proponents of the anti-birthright-citizenship movement.