Republicans want to remake Supreme Court to end birthright citizenship

Republicans are crashing out over the Supreme Court’s ruling on birthright citizenship. 

They’ve called the decision an “abomination” that legalizes “baby factories.” They’ve alleged children who receive birthright citizenship are “being groomed by communists and globalists” and are “actively colonizing our country.” And they’ve even lambasted Justice Amy Coney Barrett as “Amy Commie Barrett.”

It’s openly sexist and nakedly xenophobic, but behind the meltdown is a desire to remake the Supreme Court to overturn precedent. It wouldn’t be the first time.

“Fundamentally, what we’re talking about is fixing a problem the Supreme Court created. We also want to look, over the long term, at undoing that problem to begin with. Because, again, this was only a 5-to-4 decision,” Vice President JD Vance said in an interview with Fox News’ Laura Ingraham Tuesday.

“This drives home, Laura, why the midterms are so important, because it’s the senators who ultimately vote on those Supreme Court justices,” he said. “Imagine if one of the five justices who made a bad call today, if they left the Supreme Court.”

“We want to make sure we get someone good on there in the future,” Vance added.

Despite the vice president’s claim, the Supreme Court didn’t “create” anything through its ruling Tuesday. Rather, it merely maintained the status quo by upholding the Constitution’s guarantee of birthright citizenship — a policy that was, until recent years, uncontroversial among most conservatives.

Officially, it ruled that President Donald Trump’s attempt to unilaterally deny citizenship to children born in the U.S. to foreign nationals violated the 14th Amendment’s Citizenship Clause, which states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

For many on the right, though, it was the ultimate betrayal and established the conservative movement’s next major Court precedent to target and overturn.

“Trump v Barbara is wrong, dreadfully wrong, it will remain wrong, and a future Court will overturn it,” Will Chamberlain, Trump’s nominee to lead the Office of Government Ethics, said in a social media post.

Attempting to eliminate birthright citizenship by remaking the Court will likely be easier said than done.

Though the Court officially ruled 6-3 against Trump’s order, a closer reading of the full order reveals that even the Court’s staunch conservatives largely agreed that some babies born to undocumented people are birthright citizens under the clause. 

For example, though they dissented from the majority’s opinion, Justices Neil Gorsuch and Clarence Thomas found Trump’s order only partially constitutional insofar as it applies to “birth tourism,” the rare practice of foreign nationals traveling to the U.S. for the sole purpose of giving birth so their baby can automatically become an American citizen.

While they said they would have left Trump’s order standing, Thomas and Gorsuch were far more skeptical that Trump could deny citizenship to children born in the country to parents who consider — whether legally or illegally — the U.S. their permanent home.

“What matters isn’t whether a child’s parents are citizens. What matters is whether they (and, by law, their child at birth) have made this place their home and are thus ‘domiciled within the United States,’” Gorsuch wrote in his dissent, quoting from U.S. v. Wong Kim Ark, the Supreme Court’s landmark 1898 decision on birthright citizenship.

“Just because the executive order has some lawful applications and can survive a facial challenge does not mean it is lawful across the board and immune from narrower legal challenges,” Gorsuch continued.

Removing “birth tourism” from the equation, the ruling was not as close — perhaps 6-3 or 7-2 — and far more nuanced than it first appeared on whether children born to undocumented people living in the U.S, are citizens.

Still, in the eyes of the Trump administration, the ruling is a place to start.

“I do actually think there’s a silver lining here,” Vance said in his interview. “The fact that this case was a 5-to-4 decision, effectively, means the concept of birthright citizenship, which is an absurdity to the 14th Amendment — that concept is hanging by a thread.”

“We have to keep fighting, Laura, because we actually have an opportunity to reverse this decision, just as we reverse so many bad decisions throughout the generations,” he added.

Vance perhaps was hinting at Dobbs v. Jackson, the Court’s 2022 decision striking down Roe v. Wade and wiping away nearly 50 years of legal precedent. Or perhaps he was referring to this week’s ruling in Trump v. Slaughter, in which the Court shattered nearly a century of legal precedent and gave the president nearly unrestrained authority over independent agencies of the executive branch.

What these two cases — and several others — have in common is that their downfalls weren’t sudden. They were instead the result of decades-long, meticulous, coordinated legal and political campaigns by conservatives, who have now set their sights on Trump v. Barbara, and, by extension, birthright citizenship. Those campaigns, too, involved changing the makeup of the court — particularly Roe.

“Nothing bad in the United States is ever over, including constitutional things,” Evan Bernick, a Northern Illinois University College of Law professor, said on social media Tuesday. “These were the same arguments rejected over a century ago, and they’ll be back again.”