Looking for unanimity in the Birthright Citizenship decision

On rare occasions, a Supreme Court case raises such fundamental questions about the nature of our nation that it seems to require a unanimous decision by the justices. Brown v. Board of Education, striking down racially segregated schools, was such a case. Is the birthright citizenship challenge also one?

When President Dwight Eisenhower in 1953 appointed Earl Warren, the former governor of California, chief justice of the United States, Warren inherited a divided and fractious court. Richard Kluger, author of the brilliant history of the Brown decision, Simple Justice, described the court as “perhaps the most severely fractured court in history.”

Brown was argued twice in the high court, first in 1952 when Fred Vinson was chief justice, and again in 1953 after Vinson’s death and Warren’s arrival. Warren, a Republican, was not only a three-term former governor but had also served as California’s attorney general and had been involved in local government offices.

Historians tell us that Warren wanted a unanimous opinion in Brown and achieving it required all of his persuasive and political skills. Up until the last moment, it appeared that Justice Stanley Reed would be the lone dissenter. But Reed, and no one is certain why, changed his prior position and joined his colleagues in a unanimous decision.

Chief Justice John Roberts Jr. has an ideologically divided court and does not have the political pedigree of Warren. Roberts’ persuasive skills were honed in a very different arena, as a successful appellate court lawyer.

But two constitutional law professors—brothers Akhil Amar of Yale Law School and Vikram Amar of UC Davis School of Law—argue in an amicus brief in the recently argued birthright citizenship challenge, that a unanimous decision against the Trump administration is warranted here.

The citizenship case, Trump v. Barbara, challenges President Donald Trump’s 2025 executive order that, if the justices approve, would change Americans’ more than a century-old understanding of birthright citizenship. That understanding is that if you are born in America and “subject to the jurisdiction thereof” ( the text of the Citizenship Clause in the 14th Amendment and a 1952 statute), you are an American citizen. The Trump executive order makes citizenship dependent on the legal status of a parent or parents.

The justices have at least two paths to affirming the common understanding of the Citizenship Clause if they rule against Trump. They can rely on the actual text of the clause or on a 1952 federal law incorporating that text.

The Amar brothers urge the court to rule against Trump by answering the constitutional question. Federal laws, like the 1952 statute, may be repealed or amended. A constitutionally based ruling ensures that a future Congress could not try to retroactively repeal the 1952 act, they explain. And, if the court rules with the kind of breadth and depth as it did in Brown, they wrote, it also would be an important reminder to all citizens of their rights and their responsibilities to each other.

The Amars conclude by explaining why they believe this case is “the most important case of the century (so far?).” They offer three reasons but perhaps most importantly because it is “uniquely fundamental.”

“The basic issues at stake go to the very foundation of the Constitution. At root, citizenship is the right to have rights, and the right to belong. All constitutional issues are important, but few rival the constitutional issues in this case: Who is an American?”

For that reason and others, they wrote, they hope the court will rule not just correctly, “but will do so for the best and deepest reasons—ringingly—and will also do so unanimously, at least in outcome, and ideally in exposition.”

After the April 1 arguments, a unanimous decision did not seem likely for either Trump or the challengers, but a majority asked many more skeptical questions of Trump's lawyer. Only two justices, Clarence Thomas and Samuel Alito, appeared somewhat receptive to the Trump Administration’s arguments in defense of its reinterpretation of the Citizenship Clause.

But much can happen between the time arguments end and a decision is issued. Roberts himself reportedly changed his position during deliberations on the first Obamacare challenge. And Justice Stanley Reed, for whatever reason, did the same in Brown. Time will tell.

Marcia Coyle is a regular contributor to Constitution Daily. She was the Supreme Court Correspondent for The National Law Journal and PBS NewsHour who has covered the Supreme Court for more than three decades.