{"id":155717,"date":"2026-07-01T15:36:32","date_gmt":"2026-07-01T23:36:32","guid":{"rendered":"https:\/\/xira.com\/p\/2026\/07\/01\/justice-gorsuchs-birthright-citizenship-dissent-will-not-make-donald-trump-happy\/"},"modified":"2026-07-01T15:36:32","modified_gmt":"2026-07-01T23:36:32","slug":"justice-gorsuchs-birthright-citizenship-dissent-will-not-make-donald-trump-happy","status":"publish","type":"post","link":"https:\/\/xira.com\/p\/2026\/07\/01\/justice-gorsuchs-birthright-citizenship-dissent-will-not-make-donald-trump-happy\/","title":{"rendered":"Justice Gorsuch\u2019s Birthright Citizenship Dissent\u2026 Will Not Make Donald Trump Happy"},"content":{"rendered":"

On the one hand, the birthright citizenship ruling<\/a> allowed Chief Justice Roberts to put a bow on the Supreme Court\u2019s Term, delivering a blow to Donald Trump that Roberts will milk for every \u201cthe Supreme Court really is independent!\u201d op-ed that the Washington Post<\/em> is going give him.[1]<\/sup><\/a> The functional end of the Voting Rights Act<\/a>? Kafkaesque rulings on executive power<\/a>? Shadow docket Calvinball all the way down<\/a>? Somehow all of that will get swept under the rug by self-appointed \u201cCourt knowers\u201d who will talk about tariffs and birthright citizenship all summer. The Supreme Court took the BOLD STEP of putting the English language over partisan politics! Huzzah.<\/p>\n

On the other hand, Roberts\u2019s fellow Republicans didn\u2019t give him the public relations victory he probably wanted. A fractured opinion in the easiest case on the docket didn\u2019t help Captain Balls and Strikes sell his narrative. As a technical matter, the Court decided Trump\u2019s assault on birthright citizenship \u2014 a concept so clearly articulated in the Fourteenth Amendment that no one even considered doubting it until this administration \u2014 by a 6-3 split, though Kavanaugh only concurred in the judgment, writing separately to draw a road map for Republicans to consummate an end run around the Constitution that would look acceptable through his beer goggles. So it\u2019s more accurate to say the decision split 5-4. <\/p>\n

Or maybe it was 6-3 after all. Because buried at the end of the doorstop of an opinion \u2014 weighed down by Clarence Thomas writing 91 pages<\/em> of faux history \u2014 Neil Gorsuch dropped 6 paragraphs of dissent that managed to be undeniably a dissent, but also a signal that he would not support Donald Trump doing the one thing this executive order was designed to do<\/em>.<\/p>\n

The majority opinion took a look at the Fourteenth Amendment and concluded that, yes, children born here to parents \u201cunlawfully or temporarily present\u201d in the United States are \u201csubject to the jurisdiction thereof\u201d and therefore citizens at birth. Just like they have been for over a century. Conservatives generally took the news with grace and aplomb:<\/p>\n

\n
\n
\n

Wonder how the Federalist is reacting to the rul\u2014 pic.twitter.com\/8syROcX9lp<\/a><\/p>\n

\u2014 Jake Tapper \ud83e\udd85 (@jaketapper) June 30, 2026<\/a><\/p><\/blockquote>\n<\/div>\n<\/figure>\n

Always encouraging when you reach the \u201cforced sterilization\u201d stage. The folks at the Federalist<\/em> aren\u2019t alone in being domiciled squarely in white nationalist fantasy land, either. Right-wing social media is crashing out over the decision and \u201cwhat Roberts did\u201d as though he didn\u2019t just bless the status quo that\u2019s held since Reconstruction. It really is difficult to stress enough that the Constitution did not change here \u2014 literally no one thought any of this until recently. And then a handful of fellow traveler scholars recklessly attempted to cobble together a legal theory<\/a> that never existed before. Randy Barnett wrote a book about the Fourteenth Amendment<\/em> and decided for the first time in his life that birthright citizenship might not be a thing a year ago, which does not say much for his scholarship.<\/p>\n

But the government is staking everything on bombarding the public with the idea that this ruling changed the law, hoping that if they repeat it enough, people will start to believe it.<\/p>\n

\n
\n
\n

Acting AG Todd Blanche: “Everybody should agree that it’s a violation of our laws if your intent in coming here if you’re pregnant is to have a child to become a US citizen because of our now laws. And so what we have to do as the DOJ is make sure HSI agents and the FBI are\u2026 pic.twitter.com\/xZ6jqZh3bz<\/a><\/p>\n

\u2014 Aaron Rupar (@atrupar) July 1, 2026<\/a><\/p><\/blockquote>\n<\/div>\n<\/figure>\n

\u201cNow laws.\u201d<\/p>\n

In any event, Chief Justice Roberts, writing for himself, Sotomayor, Kagan, Barrett, and Jackson, said yes \u2014 walking through the English common law rule of jus soli, the repudiation of Dred Scott<\/em>, and the 128-year-old holding of Wong Kim Ark<\/em> that a child born in San Francisco to Chinese subjects was as American as anyone else. The government\u2019s counter-theory \u2014 that citizenship secretly turned on \u201cdomicile,\u201d a word that appears in the Citizenship Clause exactly never \u2014 got the back of Roberts\u2019s hand.<\/p>\n

\u201cThe trouble is that there is scant evidence for this dramatically revisionist view,\u201d Roberts writes. \u201cCertainly no one said that such
a change had occurred,\u201d he then adds upping the cattiness.<\/p>\n

\n

The only evidence the Government and the principal dissent can muster to show that some alternative (\u201cprimary\u201d) conception of allegiance displaced the common law is a \u201cfuneral oration\u201d for President Lincoln. Ahistorical modifiers aside, the Government and the dissent identify no source that defined allegiance at birth as being based on domicile in the period from 1776 to 1868.<\/p>\n<\/blockquote>\n

It\u2019s bittersweet to see Roberts snark about \u201cahistorical\u201d nonsense, since this is the same level of amateurish cherry-picking that forms the basis of so many of his own opinions. You think for a moment that he\u2019s so close to getting it, and then you realize he\u2019s just lobbing an insult because he knows it will get under the skin of the dissenters.<\/p>\n

But let\u2019s talk about Neil Gorsuch. Neil Gorsuch did something weird in his dissent that deserves a closer look. And it\u2019s not just that he managed to avoid talking about Native peoples in a case where it would be one hundred percent relevant. He even asked about Indian law at oral argument, thoroughly embarrassing the Solicitor General<\/a> \u2014 who confessed he\u2019d not considered the topic that Neil Gorsuch sees whenever he closes his eyes \u2014 in the process. Frankly, it\u2019s shocking that his dissent about the meaning of domicile didn\u2019t take the form of a land acknowledgement.<\/p>\n

It\u2019s fair to say a lot of folks didn\u2019t pay attention to Gorsuch\u2019s dissent yesterday, since it was the judicial equivalent of the the 20 minute exposition coda at the end of Lord of the Rings<\/em> that no one pays attention to. But it\u2019s an intriguing take because it seems as though Gorsuch doesn\u2019t really understand the whole purpose of Trump\u2019s legal assault here.<\/p>\n

Standing up for Wong Kim Ark<\/em>, Gorsuch notes that the parents in that case lived in the United States \u201ceven though they never became
naturalized citizens and statutes then in effect made that impossible.\u201d <\/p>\n

\n

What matters isn\u2019t whether a child\u2019s parents are citizens. What matters is whether they (and, by law, their child at birth) have made this place their home and are thus \u201cdomiciled within the United States.\u201d<\/p>\n<\/blockquote>\n

And when it comes to domicile, Gorsuch mused that this\u2026 probably does cover undocumented migrants.<\/p>\n

\n

Besides addressing temporary visitors, the order also denies the benefits of citizenship to children born in this country to parents who make their permanent home here, but do so in defiance of federal immigration laws. The government insists that aspect of the order can survive any possible legal challenge, too, because individuals can secure domicile in this country only if they do so in compliance with federal law.<\/p>\n

\u2026.<\/p>\n

Still, I wonder: Is a child born here to parents who have long chosen to make this Nation their permanent home not a citizen under the Fourteenth Amendment solely because his parents\u2019 presence violates statutory law? If those parents are not domiciled here, then where are they domiciled? And if the answer is nowhere, how can we reconcile that conclusion with this Court\u2019s longstanding recognition that every person is domiciled somewhere?<\/p>\n<\/blockquote>\n

But, see, Executive Order 14160 was never really about someone accidentally giving birth in a hotel. The whole point of this Stephen Miller fever dream of a memo was to strip citizenship from the children of undocumented immigrants. Neil Gorsuch dissented and then gratuitously announced that he wouldn\u2019t back the only thing the Trump administration actually cares about.<\/p>\n

Neil Gorsuch is a chaos agent. In the Federalist Society drive to guarantee \u201cNo More Souters,\u201d they managed to find an even more curious animal. An ideologue so confident in his own abstractions that he\u2019ll occasionally lean against a door frame and knock down the whole Potemkin village.<\/p>\n

\n

[1]<\/a> Note that I said \u201cop-ed,\u201d because the editorial board over at the Bezos Post already came out to complain<\/a> that the Supreme Court gets too hung up on the whole \u201cfollowing the Constitution\u201d thing.<\/p>\n

\"Headshot\"<\/em><\/strong><\/p>\n

Joe Patrice<\/a>\u00a0is a senior editor at Above the Law and co-host of Thinking Like A Lawyer<\/a>. Feel free to\u00a0email<\/a> any tips, questions, or comments. Follow him on\u00a0Twitter<\/a>\u00a0or Bluesky<\/a> if you\u2019re interested in law, politics, and a healthy dose of college sports news.<\/em><\/strong><\/p>\n

The post Justice Gorsuch\u2019s Birthright Citizenship Dissent\u2026 Will Not Make Donald Trump Happy<\/a> appeared first on Above the Law<\/a>.<\/p>\n

\"\"<\/figure>\n

On the one hand, the birthright citizenship ruling<\/a> allowed Chief Justice Roberts to put a bow on the Supreme Court\u2019s Term, delivering a blow to Donald Trump that Roberts will milk for every \u201cthe Supreme Court really is independent!\u201d op-ed that the Washington Post<\/em> is going give him.[1]<\/sup><\/a> The functional end of the Voting Rights Act<\/a>? Kafkaesque rulings on executive power<\/a>? Shadow docket Calvinball all the way down<\/a>? Somehow all of that will get swept under the rug by self-appointed \u201cCourt knowers\u201d who will talk about tariffs and birthright citizenship all summer. The Supreme Court took the BOLD STEP of putting the English language over partisan politics! Huzzah.<\/p>\n

On the other hand, Roberts\u2019s fellow Republicans didn\u2019t give him the public relations victory he probably wanted. A fractured opinion in the easiest case on the docket didn\u2019t help Captain Balls and Strikes sell his narrative. As a technical matter, the Court decided Trump\u2019s assault on birthright citizenship \u2014 a concept so clearly articulated in the Fourteenth Amendment that no one even considered doubting it until this administration \u2014 by a 6-3 split, though Kavanaugh only concurred in the judgment, writing separately to draw a road map for Republicans to consummate an end run around the Constitution that would look acceptable through his beer goggles. So it\u2019s more accurate to say the decision split 5-4. <\/p>\n

Or maybe it was 6-3 after all. Because buried at the end of the doorstop of an opinion \u2014 weighed down by Clarence Thomas writing 91 pages<\/em> of faux history \u2014 Neil Gorsuch dropped 6 paragraphs of dissent that managed to be undeniably a dissent, but also a signal that he would not support Donald Trump doing the one thing this executive order was designed to do<\/em>.<\/p>\n

The majority opinion took a look at the Fourteenth Amendment and concluded that, yes, children born here to parents \u201cunlawfully or temporarily present\u201d in the United States are \u201csubject to the jurisdiction thereof\u201d and therefore citizens at birth. Just like they have been for over a century. Conservatives generally took the news with grace and aplomb:<\/p>\n

Always encouraging when you reach the \u201cforced sterilization\u201d stage. The folks at the Federalist<\/em> aren\u2019t alone in being domiciled squarely in white nationalist fantasy land, either. Right-wing social media is crashing out over the decision and \u201cwhat Roberts did\u201d as though he didn\u2019t just bless the status quo that\u2019s held since Reconstruction. It really is difficult to stress enough that the Constitution did not change here \u2014 literally no one thought any of this until recently. And then a handful of fellow traveler scholars recklessly attempted to cobble together a legal theory<\/a> that never existed before. Randy Barnett wrote a book about the Fourteenth Amendment<\/em> and decided for the first time in his life that birthright citizenship might not be a thing a year ago, which does not say much for his scholarship.<\/p>\n

But the government is staking everything on bombarding the public with the idea that this ruling changed the law, hoping that if they repeat it enough, people will start to believe it.<\/p>\n

\u201cNow laws.\u201d<\/p>\n

In any event, Chief Justice Roberts, writing for himself, Sotomayor, Kagan, Barrett, and Jackson, said yes \u2014 walking through the English common law rule of jus soli, the repudiation of Dred Scott<\/em>, and the 128-year-old holding of Wong Kim Ark<\/em> that a child born in San Francisco to Chinese subjects was as American as anyone else. The government\u2019s counter-theory \u2014 that citizenship secretly turned on \u201cdomicile,\u201d a word that appears in the Citizenship Clause exactly never \u2014 got the back of Roberts\u2019s hand.<\/p>\n

\u201cThe trouble is that there is scant evidence for this dramatically revisionist view,\u201d Roberts writes. \u201cCertainly no one said that such
a change had occurred,\u201d he then adds upping the cattiness.<\/p>\n

\n

The only evidence the Government and the principal dissent can muster to show that some alternative (\u201cprimary\u201d) conception of allegiance displaced the common law is a \u201cfuneral oration\u201d for President Lincoln. Ahistorical modifiers aside, the Government and the dissent identify no source that defined allegiance at birth as being based on domicile in the period from 1776 to 1868.<\/p>\n<\/blockquote>\n

It\u2019s bittersweet to see Roberts snark about \u201cahistorical\u201d nonsense, since this is the same level of amateurish cherry-picking that forms the basis of so many of his own opinions. You think for a moment that he\u2019s so close to getting it, and then you realize he\u2019s just lobbing an insult because he knows it will get under the skin of the dissenters.<\/p>\n

But let\u2019s talk about Neil Gorsuch. Neil Gorsuch did something weird in his dissent that deserves a closer look. And it\u2019s not just that he managed to avoid talking about Native peoples in a case where it would be one hundred percent relevant. He even asked about Indian law at oral argument, thoroughly embarrassing the Solicitor General<\/a> \u2014 who confessed he\u2019d not considered the topic that Neil Gorsuch sees whenever he closes his eyes \u2014 in the process. Frankly, it\u2019s shocking that his dissent about the meaning of domicile didn\u2019t take the form of a land acknowledgement.<\/p>\n

It\u2019s fair to say a lot of folks didn\u2019t pay attention to Gorsuch\u2019s dissent yesterday, since it was the judicial equivalent of the the 20 minute exposition coda at the end of Lord of the Rings<\/em> that no one pays attention to. But it\u2019s an intriguing take because it seems as though Gorsuch doesn\u2019t really understand the whole purpose of Trump\u2019s legal assault here.<\/p>\n

Standing up for Wong Kim Ark<\/em>, Gorsuch notes that the parents in that case lived in the United States \u201ceven though they never became
naturalized citizens and statutes then in effect made that impossible.\u201d <\/p>\n

\n

What matters isn\u2019t whether a child\u2019s parents are citizens. What matters is whether they (and, by law, their child at birth) have made this place their home and are thus \u201cdomiciled within the United States.\u201d<\/p>\n<\/blockquote>\n

And when it comes to domicile, Gorsuch mused that this\u2026 probably does cover undocumented migrants.<\/p>\n

\n

Besides addressing temporary visitors, the order also denies the benefits of citizenship to children born in this country to parents who make their permanent home here, but do so in defiance of federal immigration laws. The government insists that aspect of the order can survive any possible legal challenge, too, because individuals can secure domicile in this country only if they do so in compliance with federal law.<\/p>\n

\u2026.<\/p>\n

Still, I wonder: Is a child born here to parents who have long chosen to make this Nation their permanent home not a citizen under the Fourteenth Amendment solely because his parents\u2019 presence violates statutory law? If those parents are not domiciled here, then where are they domiciled? And if the answer is nowhere, how can we reconcile that conclusion with this Court\u2019s longstanding recognition that every person is domiciled somewhere?<\/p>\n<\/blockquote>\n

But, see, Executive Order 14160 was never really about someone accidentally giving birth in a hotel. The whole point of this Stephen Miller fever dream of a memo was to strip citizenship from the children of undocumented immigrants. Neil Gorsuch dissented and then gratuitously announced that he wouldn\u2019t back the only thing the Trump administration actually cares about.<\/p>\n

Neil Gorsuch is a chaos agent. In the Federalist Society drive to guarantee \u201cNo More Souters,\u201d they managed to find an even more curious animal. An ideologue so confident in his own abstractions that he\u2019ll occasionally lean against a door frame and knock down the whole Potemkin village.<\/p>\n

\n

[1]<\/a> Note that I said \u201cop-ed,\u201d because the editorial board over at the Bezos Post already came out to complain<\/a> that the Supreme Court gets too hung up on the whole \u201cfollowing the Constitution\u201d thing.<\/p>\n

\"Headshot\"<\/em><\/strong><\/p>\n

Joe Patrice<\/a>\u00a0is a senior editor at Above the Law and co-host of Thinking Like A Lawyer<\/a>. Feel free to\u00a0email<\/a> any tips, questions, or comments. Follow him on\u00a0Twitter<\/a>\u00a0or Bluesky<\/a> if you\u2019re interested in law, politics, and a healthy dose of college sports news.<\/em><\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"

On the one hand, the birthright citizenship ruling allowed Chief Justice Roberts to put a bow on the Supreme Court\u2019s Term, delivering a blow to Donald Trump that Roberts will milk for every \u201cthe Supreme Court really is independent!\u201d op-ed that the Washington Post is going give him.[1] The functional end of the Voting Rights […]<\/p>\n","protected":false},"author":3,"featured_media":155698,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16],"tags":[],"class_list":["post-155717","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-above_the_law"],"jetpack_featured_media_url":"https:\/\/i0.wp.com\/xira.com\/p\/wp-content\/uploads\/2026\/07\/Headshot-300x200-2lUXZY.jpg?fit=300%2C200&ssl=1","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/155717","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/comments?post=155717"}],"version-history":[{"count":0,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/155717\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media\/155698"}],"wp:attachment":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media?parent=155717"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/categories?post=155717"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/tags?post=155717"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}