The [SCOTUS] Birthright Decision Was Surprisingly Close, Some Legal Scholars Say

Surprising, but perhaps not for this court:

On the final day of its term, the Supreme Court issued a majority opinion with a clear message: Birthright citizenship is a right guaranteed by the 14th Amendment of the Constitution.That decision on Tuesday, striking down President Trump’s executive order limiting birthright citizenship, reaffirmed decades of legal thought and practice.

But some civil rights advocates, lawyers and legal scholars were surprised that four justices — Clarence Thomas, Brett M. Kavanaugh, Samuel A. Alito Jr. and Neil M. Gorsuch — said that they did not see birthright citizenship as a constitutional right for certain groups.

(Justice Kavanaugh agreed with the majority’s decision to strike down Mr. Trump’s executive order, but based his reasoning on a federal statute rather than on the 14th Amendment.)

“This should have been a 9-0 decision,” said Bethany Li, executive director of the Asian American Legal Defense and Education Fund, which filed an amicus brief against the president’s order.

For more than a century, there was broad consensus among most legal scholars and the courts that the 14th Amendment extended citizenship not just to the children of formerly enslaved people, but also to nearly all babies born within the United States. It was only when Mr. Trump began running for office, in 2015, that a once-fringe academic theory — that the 14th Amendment was only about slavery, and did not cover the children of temporary visitors — started to gain political and legal traction.

The momentum culminated in Mr. Trump’s executive order on his first day back in office last year to end birthright citizenship for the children of undocumented immigrants and some temporary foreign residents.

“A year and a half ago, people said there was no support for this view, that it was ahistorical and atextual,” said Ilan Wurman, a law professor at the University of Minnesota who filed an amicus brief in support of Mr. Trump’s executive order. “So to get four votes for the Trump administration’s position here is quite a coup.”

To be sure, the ruling was ultimately a win for proponents of birthright citizenship….

Source: The Birthright Decision Was Surprisingly Close, Some Legal Scholars Say