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How SCOTUS Is Leaning on Trump's Birthright Citizenship Case

Dmitri Bolt
Dmitri Bolt  |  April 01, 2026 1:45 PM

The Supreme Court on Wednesday heard oral arguments on a major Trump administration executive order challenging the scope of birthright citizenship. The order denies automatic U.S. citizenship to children born in the country if the mother is unlawfully present and the father lacks citizenship or legal permanent residency, or if the mother’s status is temporary, such as a tourist, student, or work visa, and the father similarly lacks lawful status.

So far, the court has shown skepticism toward the Trump administration's arguments in Trump v. Barbara, with both the Solicitor General and the ACLU lawyer facing tough questioning from the conservative majority, an exchange made even more remarkable by the president’s unprecedented attendance at the oral arguments.

While liberal justices are expected to oppose the Trump administration regardless, several conservative justices, including Chief Justice John Roberts and Justice Brett Kavanaugh, also voiced skepticism. Justices Barrett and Gorsuch raised concerns about the legal lines the administration sought to draw, though neither indicated outright opposition.

Early in oral arguments, Chief Justice John Roberts described Solicitor General Sauer’s arguments as “very quirky” and dismissed points about Chinese birth tourism, saying, “that has no impact on the legal analysis” of the case.

Justice Kavanaugh delivered one of the sharper exchanges, pressing Sauer on a key textual discrepancy. He questioned why the 14th Amendment's "subject to the jurisdiction thereof" differed from the Civil Rights Act of 1866's "not subject to any foreign power" if both aimed to codify identical limits on birthright citizenship, a key argument of the administration.

Two other conservative justices pressed the Solicitor General with tough questions, expressing skepticism at times, though their ultimate stance in the case remains unclear.

Justice Gorsuch appeared skeptical of a central Trump administration argument regarding the phrase “subject to the jurisdiction thereof” in the 14th Amendment. Solicitor General Sauer contended it requires parents to have lawful permanent residence in the U.S., excluding children of illegal immigrants or temporary visitors from automatic citizenship. Gorsuch also questioned whether the administration’s test could be applied to Native Americans.

Justice Amy Coney Barrett questioned the Trump administration’s push to end birthright citizenship for children of undocumented immigrants, pressing Sauer on the broader consequences of rewriting how the 14th Amendment is applied.

Justice Alito seemed receptive to the administration’s arguments, while Justice Thomas, as usual, remained silent, offering no hint of support or skepticism.

While the Justices’ questioning was intense, the ACLU’s lawyer faced just as fierce scrutiny in arguing against the administration.

A decision in the case is expected by the end of June.