# Trump Loses as SCOTUS Affirms Birthright Citizenship

An episode of [Bloomberg Law](https://invisiblenetwork.ai/podcast/277975394), 1 Jul 2026, 19 min.

Audio: https://podtrac.com/pts/redirect.mp3/traffic.omny.fm/d/clips/e73c998e-6e60-432f-8610-ae210140c5b1/7c892d84-801f-4c0b-b0e9-ae2b0012ff5f/224331c2-be0a-4dcd-8c48-b47a002fb9ea/audio.mp3?utm_source=Podcast&in_playlist=91224201-26a6-429d-ac3c-ae2b0012ff6d

Constitutional law expert David Super, a professor at Georgetown Law, discusses the Supreme Court’s landmark decision affirming birthright citizenship. June Grasso hosts. See omnystudio.com/listener for privacy information.

## Transcript

[0:02] Speaker 1: This is Bloomberg Law, with June Grosseo from Bloomberg Radio. Today,
[0:09] Speaker 1: the Supreme Court upheld the long held principle of birthright citizenship,
[0:14] Speaker 1: rejecting President Trump's attempt to redefine what it means to
[0:18] Speaker 1: be an American. Trump's executive order would have restricted birthright
[0:23] Speaker 1: citizenship to babies with at least one parent who's a
[0:27] Speaker 1: US citizen or a Green Card holder, but in a
[0:30] Speaker 1: six to three decision, the Court reaffirmed a ruling from
[0:34] Speaker 1: one hundred and twenty eight years ago that except for
[0:37] Speaker 1: the children of ambassadors, the Fourteenth Amendment guarantees that all
[0:41] Speaker 1: people born in the United States are citizens.
[0:45] Speaker 2: The Supreme Court decided this issue definitively in eighteen ninety eight,
[0:50] Speaker 2: and again today reaffirmed that the Fourteenth Amendment means that
[0:55] Speaker 2: everyone born here is a citizen alike that can only
[0:59] Speaker 2: be changed by constitutional amendment, and that effort will fail.
[1:03] Speaker 1: The case was personal for Celia Wang, the ACLU attorney
[1:07] Speaker 1: who argued it before the court. She was born in
[1:11] Speaker 1: Oregon to parents from Taiwan who are not naturalized citizens
[1:15] Speaker 1: at the time. In the majority opinion, Chief Justice John
[1:19] Speaker 1: Roberts said that the Framers of the Fourteenth Amendment extended
[1:24] Speaker 1: that promise of citizenship quote to every freeborn person in
[1:28] Speaker 1: this land, and we keep that promise today. My guest
[1:32] Speaker 1: is an expert in constitutional law, Professor David super of
[1:36] Speaker 1: Georgetown Law. How big a loss is this for President Trump?
[1:41] Speaker 1: I mean, he has been using this as an issue
[1:44] Speaker 1: for more than a decade. He even sat in on
[1:47] Speaker 1: the oral arguments, part of them at least, and issued
[1:51] Speaker 1: this executive order within hours of his inauguration.
[1:55] Speaker 3: This is important for him symbolically, but I don't think
[2:01] Speaker 3: it ever mattered very much substantively, And I'm sure his
[2:05] Speaker 3: lawyers told him from the get go that he had
[2:07] Speaker 3: no chance.
[2:08] Speaker 1: The Court's decision and the descents were almost two hundred pages.
[2:13] Speaker 1: Chief Justice Roberts wrote the majority opinion, explain what he
[2:17] Speaker 1: based the decision on.
[2:19] Speaker 3: Yeah, the Chief Justice looked at the history of the
[2:24] Speaker 3: language of the Fourteenth Amendment and found that, going far
[2:29] Speaker 3: back into the English common law, someone who is born
[2:34] Speaker 3: in a place is subject to the jurisdiction of that place.
[2:38] Speaker 3: And when the Fourteenth Amendment says that children that are
[2:42] Speaker 3: born in the US subject to the US's jurisdiction are citizens,
[2:47] Speaker 3: he said that that means they're just here, except in
[2:51] Speaker 3: the very special circumstance of the kids of diplomats or
[2:55] Speaker 3: perhaps people who are born during a foreign military operation.
[2:59] Speaker 3: But with those very very limited exceptions. He found that
[3:03] Speaker 3: the framers of the fourteenth Amendment used well known terms
[3:07] Speaker 3: from the English common law, and we were bound by them.
[3:10] Speaker 1: And he said there was scant evidence to support the
[3:13] Speaker 1: Trump administration's dramatically revisionist few. And I remember during the
[3:18] Speaker 1: oral arguments that Justice Elena Kagan pointed out to the
[3:21] Speaker 1: Solicitor General that he was relying on obscure sources like
[3:27] Speaker 1: an oration delivered at President Lincoln's funeral. They didn't have
[3:31] Speaker 1: much law to back them up, did they.
[3:33] Speaker 3: They really didn't. And again they should have understood this.
[3:38] Speaker 3: It's striking that what they effectively were trying to do
[3:42] Speaker 3: is overrule a case from the nineteenth century called wom
[3:47] Speaker 3: King Art, which was handed down by almost the same
[3:51] Speaker 3: Supreme Court that gave us separate but equal at plus
[3:54] Speaker 3: e v. Ferguson, one of the most reactionary courts in
[3:58] Speaker 3: the history of the country. Found found that birthright citizenship
[4:02] Speaker 3: means what it says, and if President Trump is trying
[4:08] Speaker 3: to get even farther to the right, even deeper into
[4:12] Speaker 3: white supremacy than the plus ev Ferguson Court. That's a challenge.
[4:18] Speaker 1: Despite that, And I remember when Trump's executive order first
[4:22] Speaker 1: came out, people were like, this is crazy, this is
[4:24] Speaker 1: not going to fly. But yet you had three of
[4:27] Speaker 1: the Court's most conservative justices, Clarence Thomas, Samuel Leito, and
[4:31] Speaker 1: Neil Gorsitch dissented. Now Thomas and Alito are no surprise,
[4:35] Speaker 1: they even dissented in the tariff's case, But how did
[4:38] Speaker 1: they defend their descents.
[4:40] Speaker 3: In many respects? Therefore, descents because Justice Kavanaugh agreed with
[4:45] Speaker 3: the dissenters on the constitutional issues, so only a five
[4:49] Speaker 3: to four majority said that the Constitution protects people's birthright citizenship.
[4:55] Speaker 3: Three of them thought that the president can take it
[4:58] Speaker 3: away himself and or thought that Congress could. And it's
[5:03] Speaker 3: instructive that the dissenters really don't come up with a
[5:08] Speaker 3: single coherent theory, nor really does the federal government. They're
[5:13] Speaker 3: getting a scrap from here and a scrap from there
[5:17] Speaker 3: and trying to weave it into something. And they have
[5:21] Speaker 3: quite a number of different legal theories going on. But
[5:24] Speaker 3: they seem to say well, at some point the US
[5:28] Speaker 3: deviated from the English common law. Kind of remarkable from
[5:33] Speaker 3: judges who, on other occasions treat the common laws as
[5:37] Speaker 3: practically having been handed down on tablets Moses. But apparently
[5:43] Speaker 3: we deviated from the English common law. But no one's
[5:46] Speaker 3: quite sure when or how. Maybe someone said something at
[5:50] Speaker 3: someone's funeral, so maybe that's a big deal. But they
[5:54] Speaker 3: say that we've gone off to a different theory, but
[5:58] Speaker 3: he can't say where, he can't provide legal authority for that,
[6:03] Speaker 3: and the legal theories they come up with don't make
[6:06] Speaker 3: a great deal of sense. Taking some of them seriously,
[6:10] Speaker 3: they would seem to mean that anyone born here to
[6:13] Speaker 3: foreign parents, no matter how legal the parent status might be,
[6:18] Speaker 3: is not a US citizen. And if that's true, then
[6:23] Speaker 3: why did they even bother putting that language into the
[6:26] Speaker 3: fourteenth Amendment?
[6:28] Speaker 1: Are they going more and more away from textual analysis then, or.
[6:32] Speaker 3: It's strikingly unprincipled. And I mean, we've come to expect
[6:37] Speaker 3: a lot of this from Justice Alito and Justice Kavanaugh.
[6:42] Speaker 3: I had hoped that Justice Thomas would use this as
[6:45] Speaker 3: a chance to make a strong pitch for originalism and
[6:50] Speaker 3: say I don't like this result. I do like this President,
[6:54] Speaker 3: but originalism tells me that that's what this means. But
[6:58] Speaker 3: he doesn't do that. He comes up up with this
[7:00] Speaker 3: very convoluted theory, which I think badly undercuts originalism. I
[7:05] Speaker 3: was also disappointed frankly with Justice Gorsuch's position here, because
[7:10] Speaker 3: I think he takes originalism seriously. And the case that
[7:14] Speaker 3: they were trying to overrule Wan kim Ark is a
[7:18] Speaker 3: model of originalist reasoning, something that you would think they
[7:22] Speaker 3: would want to emulate rather than try to pick apart.
[7:26] Speaker 1: Speaking about Wan kim Ark from one hundred and twenty
[7:30] Speaker 1: eight years ago, just yesterday the court overruled Humphrey's executor,
[7:35] Speaker 1: a ninety year old precedent, and today in the campaign
[7:38] Speaker 1: finance case they overruled a precedent from two thousand and one.
[7:44] Speaker 1: Does precedent have any effect on them anymore? Do they
[7:48] Speaker 1: even feel like they have to follow it?
[7:52] Speaker 3: I think President has stopped mattering very much. There are
[7:55] Speaker 3: some respectable theories that say that we should follow the
[8:01] Speaker 3: best reading of the Constitution, we should follow an originalist meaning,
[8:06] Speaker 3: or we should follow a textual analysis or something like that,
[8:12] Speaker 3: but they don't do that either. And in the case
[8:16] Speaker 3: overruling Humphrey's executor. They create a bunch of exceptions because
[8:20] Speaker 3: they think these are good public policy. They don't have
[8:23] Speaker 3: a coherent originalist theory for these exceptions. Indeed, their theory
[8:27] Speaker 3: for the whole Slaughter case would seem to suggest that
[8:31] Speaker 3: the Federal Reserve should be under the most presidential control.
[8:35] Speaker 3: But for policy reasons and because they don't want to
[8:37] Speaker 3: be blamed for a recession, they create an exception. So
[8:41] Speaker 3: precedent doesn't matter, but neither does a coherent theory. This
[8:46] Speaker 3: is very policy driven judging.
[8:50] Speaker 1: I was going to say that, you know, you hear
[8:53] Speaker 1: from Trump and others in the administration complaints about liberal
[8:58] Speaker 1: activist judges, but it seems like the Supreme Court's conservative
[9:03] Speaker 1: justices have become activists.
[9:05] Speaker 3: They have become activists activists in pursuit of what they
[9:10] Speaker 3: think is good public policy, which is usually conservative but
[9:14] Speaker 3: sometimes has other wrinkles to it. They're making an exception
[9:19] Speaker 3: to presidential power over the federal Reserve is not really conservative.
[9:24] Speaker 3: It's that they don't want to crash the economy. And
[9:28] Speaker 3: I don't want to crash the economy either, so I'm
[9:30] Speaker 3: glad the Federal Reserve is not under the president's sum completely,
[9:34] Speaker 3: but I don't think that's principal judging. So we're not
[9:38] Speaker 3: a court of precedent, and we're not really originalist. We
[9:42] Speaker 3: cite old stuff, but not usually definitive evidence of original
[9:48] Speaker 3: public meaning, just sort of random old stuff. So we're
[9:51] Speaker 3: really off on our own with this court doing what
[9:55] Speaker 3: they think is best.
[9:57] Speaker 1: So this may have been an immigration laws for but
[10:00] Speaker 1: in every other immigration case this term, the court has
[10:04] Speaker 1: ruled against immigrants' rights and for the Trump administration, I
[10:08] Speaker 1: mean time after time. Just last week you had the
[10:12] Speaker 1: ending of GPS and also that asylum seekrets can be
[10:16] Speaker 1: turned away at the border. So all in all, Trump
[10:18] Speaker 1: has had a very good term on immigration with this court.
[10:23] Speaker 3: He has and some of those decisions are plausible. Some
[10:29] Speaker 3: of them are weird. I mean, I didn't think that
[10:32] Speaker 3: he would lose any of them, and he didn't, but
[10:36] Speaker 3: they really had to bend themselves into pretzels for some
[10:40] Speaker 3: of them. And it's kind of remarkable that they didn't
[10:46] Speaker 3: even require him to make a finding consistent with the
[10:50] Speaker 3: statute about temporary protective status. If he wants to make
[10:54] Speaker 3: a finding that conditions have improved in thus in such
[10:57] Speaker 3: a country, that might just doing it, but of course
[11:01] Speaker 3: saying conditions have improved in Haiti when the State Department
[11:06] Speaker 3: is hopping up and down, don't go there, don't go there.
[11:09] Speaker 3: If you go there, you won't come back. And yet
[11:12] Speaker 3: we are sending people there implicitly saying that things have improved,
[11:17] Speaker 3: but not making the president say it. This Supreme Court
[11:21] Speaker 3: has said that we need openness and then let the
[11:25] Speaker 3: voters decide. Here Congress has said, you grant temporary protective
[11:30] Speaker 3: status to people fleeing extremely unsafe places, and you end
[11:34] Speaker 3: it when the place becomes safe. And we aren't forcing
[11:38] Speaker 3: the president to make that declaration, stand behind it and
[11:42] Speaker 3: go to the voters to defend it.
[11:44] Speaker 1: The Chief Justice, when he's in the majority, gets to
[11:49] Speaker 1: assign the opinion, and Roberts assigned himself the majority opinion
[11:54] Speaker 1: in this birthright citizenship case, which is one of the
[11:57] Speaker 1: biggest of the term, and yesterday in two other very
[12:01] Speaker 1: high profile cases, the ones involving Fed Governor Lisa Cook
[12:06] Speaker 1: and former FTC Commissioner Rebecca Slaughter. And that's a pattern
[12:12] Speaker 1: we've seen in other terms. Obviously, he has the right
[12:15] Speaker 1: to do that, But what's your take on Robert saving
[12:18] Speaker 1: the best for himself.
[12:19] Speaker 4: Essentially, he hasn't done that all the time, but he
[12:24] Speaker 4: has certainly done it a great deal, and I think
[12:27] Speaker 4: it's because he understands the scrutiny the court is under
[12:32] Speaker 4: and believes that he can write an opinion that will
[12:36] Speaker 4: be less vulnerable to.
[12:38] Speaker 3: Public criticism than some of his colleagues would. He's a
[12:43] Speaker 3: very hard worker, He's got impressive skills, and I think
[12:47] Speaker 3: he believes he will produce the most teflon opinions, and
[12:53] Speaker 3: history suggests that he may be right.
[12:55] Speaker 1: How did other Chief Justices handle the assignment of the
[13:00] Speaker 1: Jardi opinion?
[13:02] Speaker 3: It really varies a great deal. There are some very
[13:06] Speaker 3: important war in court decisions that Chief Justice Warren assigned
[13:10] Speaker 3: to himself, most obviously Brown versus Board of Education. He
[13:14] Speaker 3: was trying to get a unanimous court, which he succeeded
[13:17] Speaker 3: in doing, and felt that having personal control of the
[13:21] Speaker 3: opinion as he was negotiating with the holdouts would allow
[13:25] Speaker 3: him to make the kinds of modifications that we unify
[13:28] Speaker 3: the court. Chief Justice Burger assigned himself opinions that seemed
[13:34] Speaker 3: interesting and important. Chief Justice Burger's skills were probably not
[13:38] Speaker 3: on the level of either Chief Justice Ward or Chief
[13:41] Speaker 3: Justice Roberts, and some of those opinions that he assigned
[13:44] Speaker 3: himself have puzzled people ever since. My sense of Chief
[13:49] Speaker 3: Justice Ranquist is that he did not particularly abuse the
[13:53] Speaker 3: privilege of assigning opinions. He certainly took some important ones
[13:57] Speaker 3: for himself, but left as many for his colleagues. So
[14:01] Speaker 3: it's a matter of different style. I think we've never
[14:05] Speaker 3: had a Chief Justice since John Marshall who cared as
[14:09] Speaker 3: much about the Court's public image as the current Chief
[14:13] Speaker 3: Justice does, and I think he correctly sees the tone
[14:17] Speaker 3: of these opinions as being very important to persuading the
[14:21] Speaker 3: public that the Court is in fact pursuing a legal
[14:25] Speaker 3: agenda rather than an ideological one.
[14:28] Speaker 1: Speaking of that, of the seventeen cases announced in the
[14:32] Speaker 1: last two weeks of the term, eleven were split six
[14:35] Speaker 1: to three down ideological lines. And that involves some of
[14:38] Speaker 1: the cases that we've been talking about, immigration, presidential power,
[14:41] Speaker 1: gun rights, human rights, etc. What does that tell you
[14:46] Speaker 1: on a court that now is the liberals are all
[14:49] Speaker 1: Democratic appointees and the Conservatives are all Republican appointees.
[14:54] Speaker 3: Well, one thing that tells this is something I think
[14:56] Speaker 3: we've known for a while is that both parties are polarizing.
[15:00] Speaker 3: The last really moderate Republican appointee was David Suitor. President
[15:07] Speaker 3: George H. W. Bush was harshly criticized for that and
[15:11] Speaker 3: was defeated for reelection. I think you could make an
[15:14] Speaker 3: argument that both Justice Stephen Bryer and Justice Atlanta Kagan
[15:17] Speaker 3: were fairly moderate Democratic appointees. I'm not sure that a
[15:22] Speaker 3: president today could make similar pointees without getting pretty harshly
[15:28] Speaker 3: criticized by parts of the Democratic coalition. But the other
[15:33] Speaker 3: point here is that because we've gotten rid of the
[15:37] Speaker 3: filibuster for judicial confirmations, if a president controls the Senate,
[15:42] Speaker 3: they can appoint whomever they want, and you end up
[15:46] Speaker 3: with justices who are extremely ideologically reliable. You don't have
[15:51] Speaker 3: to make the case that this is a distinguished jurist.
[15:54] Speaker 3: You just have to make the case that they're going
[15:57] Speaker 3: to vote for your party.
[15:59] Speaker 1: Do you think that these you know, six to three decisions.
[16:02] Speaker 1: Do you think that that's part of the reason why
[16:04] Speaker 1: it seems like the justice's nerves are frayed. I mean,
[16:08] Speaker 1: we have you know, Justic Soda Mayor involved in that
[16:11] Speaker 1: criticism of Justice Kavanaugh. You have Justice Soda Mayor reading
[16:16] Speaker 1: from her dissent, and Justice Alito saying, you know, he
[16:20] Speaker 1: was surprised by it. I mean, it seems like things
[16:23] Speaker 1: are fraid they are.
[16:26] Speaker 3: Things can sometimes get a little chippy at the end
[16:28] Speaker 3: of the term when people have strong emotional feelings about things.
[16:33] Speaker 3: But I think the problem that the liberal justices have
[16:37] Speaker 3: at this point is that they don't see a coherent
[16:41] Speaker 3: judicial philosophy of the conservatives. It's one thing, we're going
[16:46] Speaker 3: all in with originalism. Even if you aren't an originalist.
[16:49] Speaker 3: You say, okay, that gives us something predictable and lets
[16:53] Speaker 3: us know where the law is going to be. It's
[16:55] Speaker 3: wondering if we're going to be strong on upholding precedent.
[16:59] Speaker 3: But what we have here is a court that chuck's
[17:03] Speaker 3: precedent fairly, casually, without a lot of reason, without going
[17:07] Speaker 3: through the steps that have been adhere to previously. That
[17:11] Speaker 3: they cite reasons and then immediately ignore those reasons in
[17:15] Speaker 3: literally the next case. And so I think the sense
[17:19] Speaker 3: is that this is a very political process rather than
[17:24] Speaker 3: an adjudicatory one, and that's not what they signed up for.
[17:28] Speaker 3: They signed up to be judges on the highest court
[17:31] Speaker 3: in the land, not political overlords.
[17:34] Speaker 1: Just as Aldo and Justice Gorsa didn't even appear on
[17:39] Speaker 1: the bench today. Is that an indication of something or
[17:42] Speaker 1: am I just reading too much into it They had
[17:43] Speaker 1: something to do. I don't know.
[17:45] Speaker 3: On the one hand, the Court's public release of opinions
[17:50] Speaker 3: is a bit anachronistic. Most of us don't tune into that,
[17:55] Speaker 3: but get the opinions off of the Court's website and
[17:58] Speaker 3: start reading the instead. Very very few courts do public
[18:03] Speaker 3: announcements of opinions. A few district judges do. Most lawyers,
[18:08] Speaker 3: I think, find that annoying. So I don't put a
[18:12] Speaker 3: lot of truck in the ceremony, and if they ended
[18:14] Speaker 3: the ceremony, I wouldn't be terribly disturbed. But if they're
[18:19] Speaker 3: having it, it says something about how much respect for
[18:22] Speaker 3: your institution you have if you can't bother to show up,
[18:26] Speaker 3: if you can't change your plane reservations or whatever it
[18:30] Speaker 3: is to your south Sea getaway long enough to sit
[18:35] Speaker 3: for the last day of opinions.
[18:37] Speaker 1: Yeah, and it's nice to be on vacation for three months.
[18:41] Speaker 1: Thanks so much, David for all your analysis of the
[18:45] Speaker 1: Supreme Court decisions this term. That's Georgetown Law professor David
[18:50] Speaker 1: super and that's it for this edition of The Bloomberg
[18:53] Speaker 1: Law Show. Remember you can always get the latest legal
[18:55] Speaker 1: news on our Bloomberg Law Podcast. You can find them
[18:58] Speaker 1: on Apple Podcasts, Spotify, and at www dot bloomberg dot
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[19:07] Speaker 1: The Bloomberg Law Show every weeknight at ten pm Wall
[19:10] Speaker 1: Street Time. I'm June Grosso and you're listening to Bloomberg

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