I’m going to spend the next couple of weeks trying to unpack what the Supreme Court did at the end of its last term, because the Court did a lot. But let’s take it one step at a time. 

So first of all, we need to celebrate our victories, and in Trump v. Barbara (June 30, 2026) we have a complete victory on the “birthright citizenship” question. 

People have argued about whether the decision was 6-3 or 5-4 or 5-1-3 (it was 5-1-3) but the point is that it was a victory. Chief Justice Roberts gave birthright citizenship a full-throated endorsement, and he was joined in that endorsement by the three liberal justices and Amy Coney Barrett. 

The issue is now settled. It doesn’t matter that the score was closer than it should have been because it’s not coming back to the Supreme Court anytime soon. And, in the process, both Alito and Thomas opened themselves up to strong judicial critiques that challenge their scholarship (although I realize it won’t really matter to them).

In any case, Roberts wrote a historically grounded majority opinion tracing an unbroken line from English common law through the leading case of Wong Kim Ark to the present. The three dissenting Justices each have specific vulnerabilities. 

Thomas argued the Citizenship Clause was a race-specific remedial measure aimed only at freed slaves (which contradicts his decades-long insistence on a colorblind Constitution). Thomas’s position also produces a logical absurdity: if the Clause applied only to freed slaves, then its operative force was exhausted when the last freed slave died, making it a constitutional dead letter applicable to nobody alive today.

Alito’s separate dissent advanced an “allegiance theory” under which a person can be “subject to the jurisdiction” of the United States only if they owe their complete and exclusive allegiance to the United States. However, the allegiance theory has a serious logical vulnerability: if exclusive allegiance is constitutionally required, then dual citizens (of whom there are an estimated 7 to 15 million in the United States) might be deprived of their citizenship altogether, and would no longer have the protections of the 14th amendment (or frankly any other amendment).

Kavanaugh’s concurrence resolved the case on the narrowest possible grounds: that the executive order violates a federal statute (8 U.S.C. §1401(a), enacted as part of the Immigration and Nationality Act of 1952). He essentially played coy and never reached the constitutional question. 

That’s why the score is 5-1-3.

There were some outraged memes about why, if the 14th Amendment only applies to freed slaves, doesn’t the 2nd Amendment only apply to muskets.

Point taken.

Thomas is an extreme ideologically-driven hypocrite, and one could write a book about it.

People already have.

But in this case he lost.

So today we don’t have to worry about what a nut job he is. We can postpone that worry until the next Supreme Court term begins in October and it turns out that Thomas is still alive.

But birthright citizenship is here to stay, and this is a win for the good guys.