Conservative Supreme Court Justice Clarence Thomas claims the landmark ruling affirming citizenship for all children born on U.S. soil “devalues” American citizenship.
In a separate dissent from the majority opinion, Justice Samuel Alito suggested that the majority’s opinion will “degrade” the concept of American citizenship by making the children of “birth tourists” citizens.
“I am not sure that today’s opinion will stand the test of time,” Thomas wrote in his 91-page dissent. “The Citizenship Clause ‘added greatly to the dignity and glory of American citizenship’ …. Today’s opinion devalues that citizenship.”
Thomas, the second Black justice on the nation’s high court, said he would’ve allowed Donald Trump to unilaterally deny citizenship to the children of certain immigrant parents through the president’s executive order, which the court overturned Tuesday in its final decision of this year’s term.
In arguments echoing Trump’s, Thomas claims the 14th Amendment was intended to grant citizenship to formerly enslaved Black people and their children — not those of “foreign temporary visitors” or “birth tourists,” an argument rejected by the majority as “dramatically revisionist.”
“Blacks were entitled to citizenship because they were Americans,” Thomas wrote. “They had no other homeland, owed no allegiance to any foreign power, and were subject to no other authority. The same could not be said for the children of foreign temporary visitors.”
The 14th Amendment’s citizenship clause states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”
Tuesday’s divided ruling, written by Chief Justice John Roberts, determined that children born in the United States to parents “unlawfully or temporarily present” are indeed “subject to the jurisdiction” of the U.S. and are citizens at birth.
In her own concurrence with the majority’s ruling, liberal Justice Kentanji Brown Jackson — the third Black justice on the Supreme Court — took direct aim at Thomas, by name, and his alleged “colorblind” approach to the Constitution.
“Despite his longstanding endorsement of a ‘colorblind’ Constitution, Justice Thomas now surprisingly suggests that the Citizenship Clause was a race-conscious remedial measure,” she wrote.
His “narrow vision” of the 14th Amendment — among a suite of civil rights protections in the aftermath of the Civil War — “bears little relationship to the history of its ratification,” Jackson added.
“Even worse, Justice Thomas’ telling elides the entire point of the Second Founding: The Reconstruction Amendments were an anti-caste, anti-subordination reset for the Nation, not a mere spot treatment for the dark stain of slavery,” she said.
The “central motivation” for the 14th Amendment “does not justify Justice Thomas’s myopic treatment of it,” Jackson wrote.
“The Amendment caused a paradigm shift in the trajectory of our Nation; the teacher who scolds a student for bullying a classmate hopes the student learns the broader lesson of treating everyone with kindness, not just that one kid,” she continued. “Instead of the limited salve the principal dissent makes it out to be, the Citizenship Clause reflects this universalist approach.”
The Supreme Court had previously settled the question of birthright citizenship 20 years after the 14th Amendment was ratified, with a landmark decision in the case of United States v Wong Kim Ark in 1898 holding that the Constitution grants citizenship to virtually everyone born in the country.
“What the Court held in Wong Kim Ark was simple: the Citizenship Clause incorporated the common law and granted citizenship to nearly all children born in the United States,” Roberts wrote.
“Not surprisingly, then, in the 128 years since, we have repeatedly understood the rule of Wong Kim Ark to guarantee citizenship to all children born in the United States and subject to its power,” he added. “We see no reason to depart from that view today.
In their separate dissents, both Thomas and Justice Samuel Alito reference the concept of “birth tourism,” which even the Trump administration’s top attorney during oral arguments in the case struggled to determine was a widespread issue.
During oral arguments in April, the chief justice Roberts asked Solicitor General D. John Sauer whether he had any information about “how common” or “how significant a problem” birth tourism is.
“It’s a great question,” Sauer replied. “No one knows for sure.”
He then claimed as many as 1.5 million people from China and “Russian elites” using “birth tourism companies” have entered the country.
“Having said all that, you do agree that that has no impact on the legal analysis before us?” Roberts fired back.
“We’re in a new world now,” Sauer said.
“Well, it’s a new world,” Roberts replied. “It’s the same Constitution.”
