Today in court
• Birthright brawl: Supreme Court justices have expressed skepticism during oral arguments over President Donald Trump’s executive order that attempts to end automatic birthright citizenship. The case puts the administration’s aggressive approach to immigration front and center before the court.
• Trump in court: The president is attending the arguments, the first sitting president to do so, according to the Supreme Court Historical Society.
• History: Much of the argument is expected to focus on the history and meaning of the 14th Amendment, which states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”
• High stakes: The court’s decision, expected by the end of June, could have enormous practical implications for millions of people, including US citizens. The arguments come as the White House is still smarting from the court’s decision in February to strike down Trump’s sweeping global tariffs.
Kavanaugh: Congress passed laws that did not change birthright citizenship language
Justice Brett Kavanaugh, a key vote, focused on an argument raised by the immigrant rights groups fighting President Donald Trump — suggesting the more centrist justice also has concerns with the administration’s position.
Congress, Kavanaugh noted, passed laws in 1940 and 1952 mirroring the 14th Amendment’s language. By then, lawmakers had viewed birthright citizenship with the broad understanding it still has today. Why, Kavanaugh pressed, would lawmakers not have changed the language if they intended to exclude immigrants?
“Congress repeated that same language knowing what the interpretation has been,” Kavanaugh said.
Kavanaugh, Trump’s second nominee to the Supreme Court, also knocked US Solicitor General D. John Sauer for pointing to other countries, including the United Kingdom, that have ended automatic birthright citizenship.
“I’m not seeing the relevance as a legal constitutional interpretative matter,” the justice said.
Roberts: "It's a new world. It's the same Constitution"
As Chief Justice John Roberts skewered Solicitor General D. John Sauer over his argument that the nation’s tradition of birthright citizenship is being exploited by wealthy foreigners, he made clear that that modern reality doesn’t mean the court should disrupt the long-held understanding of a 19th-century constitutional provision.
So-called birth tourism “wasn’t a problem in the 19th century,” Roberts told Sauer.
“No. But of course, we’re in a new world now,” the solicitor general responded. “Where eight billion people are one plane ride away from having a child who is a US citizen.”
Throughout the first round of arguments in the case, Roberts has repeatedly voiced skepticism toward Sauer’s arguments in defense of President Donald Trump’s executive order.
"That’s not textual": Barrett questions Trump's attempts to fill a hole in his arguments
Justice Amy Coney Barrett questioned whether the Trump administration’s theory for who is covered under birthright citizenship would even apply to all the newly freed slaves who were the subject of the amendment’s passage.
Trump is arguing that the amendment is aimed at children of parents who have allegiance to the United States because they are permanent residents, not temporary visitors or unlawfully present migrants.
Barrett noted some of the freed slaves who would have been granted birthright citizenship under the 14th Amendment would have been only recently brought to the US from Africa against their will.
Those recently enslaved parents may still feel “allegiance to the countries where they were from,” Barrett said. Trump has argued that the 14th Amendment applied to them, nonetheless, because it was designed to put all newly freed slaves and their children on equal footing.
“That’s not textual. How do you get there?” she pressed Solicitor General D. John Sauer, suggesting the administration is trying to fill a hole in its arguments with an explanation that’s not in the Constitution’s text.
Gorsuch skeptical of Trump’s domicile argument
Conservative Justice Neil Gorsuch ripped into a central argument from the Trump administration: that to be entitled to birthright citizenship under the 14th Amendment, the parents of a child must have “domicile” in the United States.
The groups on both sides of the case have debated how to define that term. The administration says the children of immigrants in the United States illegally cannot establish that they are domiciled in the country.
Gorsuch’s questions indicated that yet another conservative justice — and one who was President Donald Trump’s first nominee to the high court — is skeptical of the administration’s argument.
“How are we going to determine domicile?” Gorsuch asked. “Do we have to do this for every single person?”
When Solicitor General D. John Sauer raised Wong Kim Ark, a key precedent from the 19th century in which the court ruled that the son of Chinese nationals had citizenship, Gorsuch shut that down.
“I’m not sure how much you want to rely on Wong Kim Ark,” he said.
Kagan to solicitor general: The text of the 14th Amendment "does not support you"
Liberal Justice Elena Kagan made clear early on that she wasn’t buying what Solicitor General D. John Sauer was selling, telling him that the constitutional clause at issue in the case did not support his arguments in defense of the executive order.
“The text of the clause, I think, does not support you. I think you’re sort of looking for some more technical, esoteric meaning,” she said.
Sauer has argued that the 14th Amendment was intended to grant citizenship to the children of freed slaves, not immigrants who are in the country illegally.
“And then the question comes, ‘OK, if the text doesn’t support you, if there’s a real history of people using it that way.’ But as far as I can tell, you know, at the time of the 14th (Amendment) – you’re using some pretty obscure sources to get to this concept,” added Kagan, an appointee of former President Barack Obama.
Roberts voices early skepticism of Trump’s arguments
In a sign of trouble for the Trump administration, Chief Justice John Roberts told Solicitor General D. John Sauer that he was struggling to understand a key argument the Trump administration was making about birthright citizenship.
Roberts said that the examples Sauer gave of who was carved out from the citizenship guarantee at the time — children of ambassadors, children of hostile invaders — struck the justice as “quirky.”
“Then you expand it to the whole class of illegal aliens who are here in the country,” Roberts said. “I’m not quite sure how you can get to that big group from such tiny and sort of idiosyncratic examples.”
Justice Thomas asks first question about Dred Scott
Justice Clarence Thomas led off the questioning by asking about Dred Scott, the infamous 1857 decision that held the Constitution didn’t extend citizenship to freed Black slaves. The 14th Amendment was in large part a response to the Dred Scott v. Sandford decision.
“How does the citizenship clause respond specifically to Dred Scott?” Thomas asked.
Thomas, a conservative nominated to the bench by President George H.W. Bush, regularly asks the first question in oral arguments — a deference afforded to him since the pandemic as the most senior associate justice. His questions often help shape the direction of the argument.
Supreme Court arguments are underway
With President Donald Trump in attendance, the Supreme Court has begun historic arguments over the administration’s effort to end automatic birthright citizenship.
First up the lectern is Solicitor General D. John Sauer, who is defending Trump’s executive order. He will argue that the 14th Amendment was intended to grant citizenship to the children of freed slaves, not immigrants who are in the country illegally.
Public broadly supports birthright citizenship promise
There’s a broad public consensus around the concept of birthright citizenship, recent polling finds.
In a Quinnipiac University poll last December, 70% of voters said they thought the Supreme Court should keep in place that 1898 ruling that anyone born in the US is a US citizen under the Constitution, with just 24% calling on the court to reverse it.
A near-universal 96% of Democratic voters said that the ruling should remain in place, as did 75% of independent voters and 43% of Republican voters.
A November poll from Marquette Law School, which provided more in-depth explanation of the case facing the Supreme Court, also found widespread support for the idea of birthright citizenship.
Marquette asked how the Supreme Court should rule on the administration’s argument that the 14th Amendment provision related to birthright citizenship “was intended to only apply to newly freed slaves after the Civil War and should not apply to a non-citizen’s child who is born in the United States today.”
A 72% majority of Americans said that the Court should find that the 14th Amendment applies to everyone born in the United States, with 28% favoring a ruling that birthright citizenship does not apply to someone born to non-citizen parents today.
Bondi to attend SCOTUS arguments
Attorney General Pam Bondi will attend the oral arguments in the Supreme Court for the birthright citizenship case.
President Donald Trump is also inside the courtroom now.
Trump enters Supreme Court courtroom for birthright citizenship arguments
President Donald Trump has entered the ornate courtroom at the Supreme Court to witness oral arguments about his birthright citizenship executive order, according to a court spokesperson.
Given that the appearance of a sitting president at an argument is unprecedented, there had been considerable speculation about exactly where Trump would sit in the room. The president is sitting in the public section in an area often reserved for notable guests, such as members of Congress and cabinet members.
The Supreme Court Historical Society has said he is the first sitting president to attend an oral argument.
Supreme Court’s case on birthright citizenship will likely be decided on six words
The Supreme Court will hear oral arguments Wednesday over President Donald Trump’s effort to reimagine what virtually everyone in the country has understood for more than a century: People born in the United States are automatically citizens.
An attorney for the Trump administration and another representing children and their parents challenging Trump’s executive order will square off for more than an hour over the meaning of the 14th Amendment, ratified three years after the Civil War. The main part of that amendment’s citizenship clause is clear: “All persons born or naturalized in the United States… are citizens of the United States.”
But Trump and his allies are focused on six words in between those two points. The amendment granted citizenship to people born in the United States “and subject to the jurisdiction thereof.” The arguments will center around the meaning and history of those words.
ACLU attorney Cecillia Wang, arguing for the plaintiffs, will say those words simply mean that the children in question would be subject to the laws of the country. The Trump administration, represented by Solicitor General D. John Sauer, will say that foreign nationals can’t possibly be “subject to the jurisdiction” of a country where they are not citizens or lawful permanent residents.
Even less than a decade ago, Trump’s theory of birthright citizenship would be considered fringe. But the president ran for reelection largely on a promise of curbing immigration, and since reclaiming power, his administration has sought to push the boundaries of policy and law.
“The Fourteenth Amendment’s citizenship clause was adopted to grant citizenship to freed slaves and their children — not to children of temporarily present aliens or illegal aliens,” Sauer told the Supreme Court.
The groups challenging the order, including the American Civil Liberties Union, say the citizenship clause enshrined birthright citizenship into the Constitution.
“For generations, all three branches of the US government and the American people have understood, applied, and relied on that constitutional bedrock — embodying our American values of equality and opportunity and contributing to the thriving of our nation,” they told the court.
"The greatest privilege that exists": What a New Hampshire judge said about US citizenship
After the Supreme Court sent challengers to President Donald Trump’s birthright citizenship order scrambling to secure new rulings against it last summer, a federal judge in New Hampshire became the tip of the spear in the legal fight when he issued a fresh new nationwide wide block the policy.
Ruling from the bench in early July, US District Judge Joseph Laplante said his decision in the case “is just not a close call” and that Trump’s attempt to make an “abrupt change of policy that was long-standing” could not stand.
The appointee of former President George W. Bush certified a class of individuals who would be impacted by Trump’s order and issued a preliminary injunction that indefinitely blocked implementation of it against the class members.
American citizenship and the country’s tradition of granting it to nearly all persons born here, Laplante said at the conclusion of an hour-long hearing, “is the greatest privilege that exists in the world.”
Supreme Court precedent from 1898 to play central role in arguments
More than 130 years ago, a young man born in the United States to parents of Chinese descent was refused entry into the United States after he traveled to China to visit relatives.
As the Supreme Court takes up the issue of birthright citizenship today, Wong Kim Ark’s story will be front and center in the arguments.
The groups challenging Trump’s order rely heavily on the Supreme Court’s decision in 1898 in United States v. Wong Kim Ark. In it, the court declared that the plain words of the 14th Amendment bestowed citizenship on the son of Chinese nationals who was born in the United States.
“Thirty years after ratification of the Fourteenth Amendment, at the height of anti-Chinese fervor, this court rejected the government’s last broadside against birthright citizenship,” the American Civil Liberties Union told the Supreme Court in a briefing. The precedent “recognized the citizenship of U.S.-born children of virtually all foreign nationals.”
Wong Kim Ark’s parents lived in San Francisco but were not citizens, and they were ineligible for citizenship. But they had lived in the country or, to use the court’s term, established domicile.
And that is the counterargument that the Trump administration is making: The Wong Kim Ark decision requires the parents of people born in the United States to be domiciled there.
“Wong Kim Ark recognized that the clause guarantees citizenship not just to children of citizens, but also to children of aliens ‘enjoying a permanent domicil and residence’ here,” the Justice Department told the Supreme Court. “That limit was central to the analysis.”
Why Barrett and Kavanaugh are key justices to watch
Because the issue of birthright citizenship hasn’t made its way to the Supreme Court in a substantive way in more than 100 years, in a sense all of the justices will be important to watch closely during Wednesday’s arguments.
It’s difficult to see any of the court’s three-justice liberal wing embracing President Donald Trump’s executive order. And so what will likely be more compelling to watch is how the court’s six-justice conservative majority approaches the case.
Justices Brett Kavanaugh and Amy Coney Barrett, along with Chief Justice John Roberts – often seen as the three most likely to break from their fellow conservatives – will be important to watch when the Trump administration is at the lectern.
Kavanaugh pressed the Trump administration hard on the practicalities of ending automatic birthright citizenship when a more technical aspect of the case was argued at the court last year. Barrett, though still a relatively junior justice, wound up writing that majority opinion.
It will also be worth watching the court’s stalwart conservatives, especially Justices Clarence Thomas and Samuel Alito. Any indication that they’re not buying the administration’s argument will be a very bad sign for the president’s order.
What CNN's chief legal correspondent is watching for today
Here’s what CNN chief legal correspondent Paula Reid is watching for at today’s Supreme Court arguments:
- Implementation – I am watching for how many questions the government gets asked about implementation of this executive order. Justice Brett Kavanaugh previously grilled Solicitor General D. John Sauer about the logistics of how this order would be enforced. Kavanaugh is usually a reliable conservative, so I am watching to see how much the justices focus on this issue during questioning.
- National security – A senior administration official tells me the government believes that allowing foreigners to come to the US and give birth to US citizens presents a security risk, especially when talking about adversaries like China and Russia. I am looking to see how much the government focus on this argument. It was a big talking point when the executive order came out.
- Any chance Trump wins? – Most legal experts agree this is an uphill battle for the government, and a former justice official even told me it’s unlikely they will win, so I am curious to see if the justices give any indication during arguments that they might side with the administration.
Here's how the justices’ own families came to America
Chief Justice John Roberts’ ancestral line traces to a coal mining village in northwestern England. Justice Elena Kagan’s grandparents were Russian Jewish immigrants. And Justice Samuel Alito’s father was born Salvatore Alati in Italy in 1914 shortly before the family emigrated and his name was “Americanized.”
Each of the nine has a distinct origin story. Some express regular pride in their ethnicity, like Alito (who turns 76 on Wednesday), Kagan, and Justice Sonia Sotomayor, whose people lived in Puerto Rico long before it became a US territory. For other justices, ethnic heritage is more distant. Justice Neil Gorsuch is a fourth generation Coloradan who defines himself in terms of his family’s Western experience.
They are all about to take up a historic dispute that goes to the core of American identity. From their personal vantage points and separate ideological approaches, they will decide if the concept of birthright citizenship, cemented in the Fourteenth Amendment, endures.
Crowds start to gather outside SCOTUS ahead of oral arguments
Crowds were already starting to gather outside of the Supreme Court two hours before the court was set to hear arguments on President Donald Trump’s birthright citizenship order.
Protesters could be seen holding signs that say, “Trump must go now” and “citizenship won’t save you.”
There was larger police presence at the Supreme Court ahead of the arguments, and protesters were handing out flyers urging people to defend birthright citizenship.
The president has said he will attend oral arguments at the Supreme Court today.
There’s an easy way for the Supreme Court to decide the case
Most of the written arguments about President Donald Trump’s effort to end automatic birthright citizenship have dealt with what the framers understood the 14th Amendment’s citizenship clause to include. But there’s a far cleaner and easier way for the justices to decide this case.
That’s because, in addition to the 14th Amendment, Congress passed a law in 1940 and 1952 echoing the amendment’s language. By then, lawmakers would have largely recognized the concept of birthright citizenship as it is understood today. And Trump’s executive order can’t nullify a law passed by Congress and signed by a former president.
That law is known as the Immigration and Nationality Act.
A ruling like that would also be consistent with where several members of the court’s conservative majority have been for years, viewing unilateral action by a president to enact sweeping policies with a high degree of skepticism.
If the court were to go that route, then it would strike down Trump’s birthright order but save the constitutional questions for another day.
Trump to attend Supreme Court oral arguments, an apparent first for a sitting president
President Donald Trump is expected to attend today’s oral arguments at the Supreme Court, the first sitting president to do so, according to the Supreme Court Historical Society.
Professor Adam Winkler, a Supreme Court specialist at the University of California Los Angeles School of Law, told CNN that his research has not turned up a “single instance” of a sitting president attending a Supreme Court argument.
“Trump’s appearance is historic, apparently a first,” Winkler said.
Former and future presidents have either attend arguments or argued cases themselves, the historical society noted.
The oral arguments come more than a year after Trump signed an executive order aimed at ending the right to citizenship for anyone born within the United States. The president said Tuesday that he would attend because he’s “listened to this argument for so long.”
When pressed on his opinion of the justices, Trump said, “I love a few of them. I don’t like some others,” complaining that the conservative justices have ruled against him to “show how honorable they are.”
Trump previously floated attending oral arguments at the nation’s highest court last year in a case about his sweeping global tariffs but did not end up going. “I really believe I have an obligation to go there,” he told reporters at the Oval Office in October.
CNN’s Adam Cancryn contributed to this report.
