What the Supreme Court did on the final day of its term
The U.S. Supreme Court
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The Supreme Court Tuesday upheld the long-established right of children born on U.S. soil to automatic American citizenship, regardless of their parents’ immigration status. In so doing, the court rejected President Trump’s most aggressive attempt to limit immigration in the United States.
Writing for the court majority, Chief Justice John Roberts traced birthright citizenship back to the founding of the nation. Just as the colonists demanded “the rights of Englishmen” more than 250 years ago, he said, Congress, after the Civil War, amended the Constitution to specify automatic citizenship for any child born on U.S. soil.
“Citizenship then and now was the right to have rights”—and the framers of the 14th amendment extended that promise to every free born person in this land. He concluded: “We keep that promise today.”
The vote was 6-to-3, depending on how you count it. Altogether, five justices signed on to the Roberts’ majority opinion. A sixth, Justice Brett Kavanaugh, agreed only that federal legislation enacted in the 1950s grants automatic citizenship for children born in the U.S.
Justice Clarence Thomas wrote the lead dissent, a 91-page opus that agreed with Trump’s assertion that the 14th amendment only applied to former slaves and their descendants. The Thomas dissent added ominously that he “was not sure that “today’s opinion will stand the test of time.” The dissent was joined by Justice Neil Gorsuch, with Justice Samuel Alito writing a separate dissent.
Justice Ketanji Brown Jackson, who, like Thomas is African American, responded to some of the themes in the Thomas dissent.
“Despite his longstanding endorsement of a colorblind society,” she wrote, “Justice Thomas now surprisingly suggests that the citizenship clause was a race-conscious remedial measure relating only to freed slaves.”
Cecillia Wang, legal director of the ACLU, who successfully argued the case at the Supreme Court, said President’s Trump failed attempt to limit birthright citizenship was transparent.
“A majority of the court saw through what the president was trying to do in spinning birthright citizenship as something that can flex and retract and expand depending on what the administration in power thinks about immigration policy,” she said.
Wang sees birthright citizenship as “much more fundamental than that.”
“It is part of how our country rejected caste distinctions and championed freedom and equality,” she said.
Yale law professor Akhil Amar called the court’s opinion a classic example of the court sticking to the original meaning of the Constitution. The text of the 14th Amendment, he said, “is about the child. It doesn’t say anything about parents.”
University of Virginia law professor Amanda Frost, however, was surprised and saddened that the court was so closely divided.
“The very length of the opinion,” she told NPR, plus “the fact that you had four justices say the Constitution does not require near universal birthright citizenship, which had been the understanding, that suggests that this is a fringe argument that the Trump administration has succeeded in moving into the mainstream, even though it has not succeeded in the end of the result.”
The issues in the birthright case focused in large part on the longstanding, and as of Tuesday, still standing, meaning of the 14th Amendment, which was enacted after the Civil War. It guarantees birthright citizenship to almost all persons born or naturalized in the United States. Chief Justice Roberts pointedly said the only exceptions written into the amendment were for certain Indian tribes, which were not subject to the laws of the United States at the time, and the children of foreign diplomats. That understanding was so well accepted that even in World War II, when Japanese citizens were confined to internment camps, their children, born in those camps, were automatically deemed to be American Citizens.
The Supreme Court’s decision Tuesday was the second time the justices have upheld birthright citizenship. The court’s previous decision came in 1898 in the case of Wong Kim Ark, born in the U.S. to Chinese parents. His great grandson, Norman Wong, issued a statement today saying, “My great grandfather, Wong Kim Ark, never set out to become a symbol. He was one man, only a cook, and yet he stood up for what was right, and I believe that it has made a difference. As a result, he stood up for the rights of all of us Americans – it just so happens that I am related to him. Today’s ruling shows that his victory remains as important now as it was in 1898.”
The high court also issued opinions in two other cases on Tuesday. In a 6-to-3, ideologically divided vote, the court upheld state laws that prevent transgender athletes from playing on women’s sports teams. Writing for the conservative majority, Justice Brett Kavanaugh said that the laws violate neither federal statutes nor the 14th Amendment. States, he said, have a legitimate interest in protecting the safety of sports, which he suggested could be compromised if transgender girls or women are allowed to play on female teams. Similarly, he said transgender athletes could also compromise fairness in athletic competition.
Sitting in the court chambers Tuesday when Kavanaugh summarized his opinion were not only his wife and mother, but his two daughters, whose athletic teams their father has long coached.
Justice Sonia Sotomayor, joined by her liberal colleagues, issued a partial dissent. She agreed with the majority that the benefits of sports are “immense,” but she wrote that these laws unconstitutionally deny transgender athletes the opportunity to play with their peers.
In a third ideologically divided case Tuesday, the Court struck down decades-long limits on the amount of money political parties can spend on candidates. The limits were challenged by the Republican National Committee. The decision may well increase by millions of dollars the amount of money that will pour into campaigns.
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