On birthright citizenship, Supreme Court didn’t meet the moment

Welcome back, Deadline: Legal Newsletter readers. The Supreme Court didn’t give Donald Trump everything he asked for this term. But it gave the Republican president and his party a lot, ranging from presidential power (more of it) to immigration (less of it) to voting rights (less of them) to campaign finance rules (less of them, too) and more.

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In the handful of big cases Trump lost — including tariffs (by a 6-3 vote), mail-in ballot deadlines (by a 5-4 vote) and birthright citizenship (by a 5-4 or 6-3 vote; more on the difference below) — the results said more about the extreme nature of his asks and the dissenting justices who were eager to answer them.

The birthright citizenship case is Exhibit A. It was expected that Chief Justice John Roberts would lead the court in striking down Trump’s executive order that sought to override the Constitution, federal law and precedent dating back to 1898.

The unexpected part was that Roberts spoke for only five justices when he confirmed that Trump’s order violated the constitutional guarantee of citizenship for virtually all babies born in this country.

“Citizenship, then and now, was the right to have rights — to freely participate in our political community,” the chief justice wrote, as he recalled that the framers of the Constitution’s 14th Amendment extended that promise to “every free-born person in this land.” He concluded his opinion by saying, “We keep that promise today.”

But the “we” was only a bare majority of the court: Roberts, the three Democratic appointees and Trump appointee Amy Coney Barrett. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch dissented, while Justice Brett Kavanaugh was in the middle, refusing to fully join Roberts or the dissenters. Kavanaugh said Trump’s order was illegal under federal law but not under the Constitution; meaning, had Kavanaugh’s view prevailed, Congress would be free to pass a new law restricting birthright citizenship.

Under the Roberts-led view that prevailed, a constitutional amendment or new court ruling is needed to undo Tuesday’s decision in Trump v. Barbara. Until then, the promise holds. But a pledge that hinges on a one-vote margin is shaky indeed.

In the meantime, let’s be clear about what happened here. By keeping the Constitution’s citizenship promise, Roberts and Barrett didn’t turn liberal or turn against Trump or anything like that. They kept the status quo. The radical departure would have been going the route of the dissenters.

Plus, Roberts and Barrett were with their fellow GOP appointees that same day in two other big rulings: striking down campaign finance limits and upholding transgender sports bans.

The day before that, Roberts led that same 6-3 majority in the Slaughter case that overturned nearly a century of precedent in handing Trump even more power over (what were previously) independent federal agencies.

A few days before that, Roberts and Barrett joined Alito’s 6-3 rulings backing the president’s restrictionist immigration agenda, giving the government more power to end humanitarian protections and block migrants from making asylum claims.

These recent rulings followed April’s “demolition” of the Voting Rights Act, as Justice Elena Kagan put it in her dissent from Alito’s 6-3 opinion in Louisiana v. Callais. The majority went on to apply Callais in a way that further helps Republicans in November’s midterm elections, by letting Alabama use a congressional map that a lower court panel said intentionally discriminated against Black people. That lower court panel had two Trump appointees on it.