Tipsheet

Here's What the Dissent Had to Say In the Birthright Citizenship Case

Dmitri Bolt
Dmitri Bolt  |  June 30, 2026 12:15 PM

The Supreme Court delivered a stunning blow to President Trump's birthright citizenship executive order, which sought to declare that babies born in the U.S. to mothers unlawfully present or in the United States on temporary visas would no longer automatically receive U.S. citizenship.

The ruling in Trump v. Barbara was 6-3, with Justices Kavanaugh, Amy Coney Barrett, and Chief Justice John Roberts joining the liberal justices in striking down the order. The ruling was exceptionally long, nearly 200 pages. 

Justice Clarence Thomas wrote a scathing dissent, grounding his reasoning in the view that the 14th Amendment was meant to apply narrowly to the children of slaves, and that the disputed phrase “subject to the jurisdiction thereof” applied only to those owing no allegiance to a foreign power and residing permanently in the United States. He described the majority's decision as adding "to the sad history of the Fourteenth Amendment."

"The Court today takes the extraordinary step of holding facially unconstitutional the President’s Order excluding from citizenship the children of foreign temporary visitors and illegal aliens," Justice Thomas wrote. "In doing so, the Court adds to the sad history of the Fourteenth Amendment, which was designed and understood to secure equal rights for the freed blacks but has instead been repurposed for political projects that the Reconstruction Congress did not support. Because many potential applications of the President’s Order are consistent with the original public meaning of the Citizenship Clause, I respectfully dissent."

In his dissent, Justice Thomas argues that Dred Scott-era critics rejected the idea that citizenship hinged solely on birthplace, emphasizing instead domicile, permanent residence, as the key standard. Under that framework, he suggests, citizenship would not extend to children of illegal aliens or temporary visa holders who give birth in the United States. 

He also pointed to the 14th Amendment’s original understanding, asserting it applied only to those “not subject to any foreign power,” and lamented the fact that today’s ruling expands birthright citizenship well beyond what the 14th Amendment’s framers intended.

"I am not sure that today’s opinion will stand the test of time," he wrote. "The Citizenship Clause 'added greatly to the dignity and glory of American citizenship.' Today’s opinion devalues that citizenship."

In a separate dissent, Justice Alito argues that the 14th Amendment was intended to align with the Civil Rights Act of 1866, which explicitly excluded children of foreign diplomats and Native Americans to preserve the principle of exclusive allegiance. He contends these exceptions demonstrate that birthright citizenship was never meant to apply to children of those who are non-domiciled or illegal aliens.

"The Court’s interpretation preserves a powerful incentive to enter or remain in this country illegally. Immigrants naturally prefer affluent countries where economic opportunities are available. Other than Canada, the United States will be the only affluent nation where birth alone is enough to establish citizenship," Justice Alito wrote. "If the Fourteenth Amendment required these results, the country would have to live with them or amend the Constitution. But the Fourteenth Amendment does not include the rule the Court now imposes on the country. In my judgment, the Court has made a mistake that will seriously affect the country’s future. For that reason, I respectfully dissent."