Preview: A Blowout for Birthright Citizenship at SCOTUS

Summary

Amicus With Dahlia Lithwick | Episode Summary

Episode Title: Preview: A Blowout for Birthright Citizenship at SCOTUS
Date: April 1, 2026
Host: Mark Joseph Stern (for this episode)
Guest: Evan Bernick, Professor at Northern Illinois University College of Law
Main Theme: Analysis of Supreme Court arguments in the Trump v. Birthright Citizenship case

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Episode Overview

This episode provides a timely breakdown of the historic Supreme Court arguments concerning President Trump's executive order challenging birthright citizenship in the United States. Host Mark Joseph Stern speaks with legal scholar Evan Bernick to assess the justices’ reactions, the government's originalist arguments, and the deeper constitutional and historical context of the Fourteenth Amendment’s citizenship clause.

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Key Discussion Points and Insights

1. Case Background and Stakes

• [00:02–00:39]
  • The Supreme Court heard arguments on Trump’s executive order denying birthright citizenship to children born in the U.S. if their parents are undocumented immigrants or temporary visa holders.
  • Lower courts unanimously found the order violates the 14th Amendment’s citizenship clause.
  • Mark Stern emphasizes: “If you credit the government's theory, the citizenship of millions of Americans, past, present and future could be called into question.”
• President Trump notably attended the Supreme Court arguments in person—an unprecedented move.

2. Immediate Takeaway: Blowout Against Trump’s Order

• [01:57–02:41]
  • Mark Stern asserts that only two justices seriously considered upholding Trump’s order, indicating a clear majority against it.
    • Stern: “These arguments went very poorly for Trump, with only maybe two justices seriously entertaining the idea of upholding Trump’s order.”
  • Evan Bernick concurs: “Literally two justices are seriously considering upholding Trump's order, and the other seven justices are firmly in agreeance with the lower courts” ([02:10]).

3. Identifying the Holdouts

• [02:41–02:57]
  • The two justices open to upholding Trump’s order: Justices Clarence Thomas and Samuel Alito.
  • Stern’s candid remark: “And we can just name and shame the two who might be open to upholding the order. No one will be surprised.”

4. Originalism and the 14th Amendment Debate

• [03:15–04:20]
  • Bernick, co-author of a law review article on the original meaning of the 14th Amendment, details how the Solicitor General struggled with inconsistent historical arguments.
    • Bernick notes:

      “Even though the Solicitor General led with an appeal to original public meaning, he quickly found himself in a great deal of difficulty trying to toggle between two very different revisionist accounts of the citizenship clause … He couldn't choose between those two theories. He tried to toggle between them. And the justices who were intelligent enough to follow the tenor of an originalist sou. Arguments leapt at him very quickly. And we're not buying it.” ([03:15])

  • The two conflicting government theories:
    • That the 14th Amendment either incorporates a British common law-style allegiance requirement
    • Or, that it deliberately departed from British law to require parental domicile
  • Bernick points out the lack of consistency in the arguments and credits most justices for not being “swayed by all of the revisionist pseudo scholarship that was cooked up in the last year or so to support Trump.”

5. Tone and Atmosphere in the Courtroom

• The episode highlights that even justices appointed by Trump, specifically Barrett and Gorsuch, appeared skeptical and at times hostile to the solicitor general’s arguments.

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Notable Quotes

• Mark Joseph Stern:
  “If you credit the government's theory, the citizenship of millions of Americans, past, present and future could be called into question.” ([00:02])

• Evan Bernick:
  “I would say literally two justices are seriously considering upholding Trump's order, and the other seven justices are firmly in agreeance with the lower courts that unanimously rejected the order as unconstitutional.” ([02:10])

• Evan Bernick:
  “He quickly found himself in a great deal of difficulty trying to toggle between two very different revisionist accounts of the citizenship clause that were worked up over the course of the last year to support the Executive order … The justices who were intelligent enough to follow the tenor of an originalist … leapt at him very quickly. And we’re not buying it.” ([03:15])

• Mark Joseph Stern:
  “And we can just name and shame the two who might be open to upholding the order. No one will be surprised. It was Justices Clarence Thomas and Samuel Alito…” ([02:41])

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Timestamps for Key Segments

• [00:02] — Introduction and case overview
• [01:57] — Host and guest agree: clear majority against Trump’s argument
• [02:41] — Discussion of Justices Thomas and Alito’s positions
• [03:15] — Dissection of the Solicitor General’s originalist arguments and the justices’ reception

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Memorable Moments

• The historic attendance of a sitting president (Trump) at Supreme Court arguments, underlining the national significance of the case.
• The clear skepticism—even among some conservative justices—toward the government’s attempt to reinterpret the Citizenship Clause of the 14th Amendment.
• The episode’s forthright tone in critiquing superficial or revisionist approaches to constitutional history.

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Summary:
This Amicus episode provides a sharp, informed breakdown of Supreme Court arguments on birthright citizenship, spotlighting the overwhelming judicial skepticism toward President Trump’s executive order. With lucid explanations from legal scholar Evan Bernick and incisive analysis from Mark Stern, listeners walk away with a clear sense of the Court’s mood, the shaky foundations of revisionist legal arguments, and the high stakes for millions of Americans’ citizenship status.

Transcript

[A]

This is Amicus Slate's podcast about the courts, the law, and the Supreme Court. I'm Mark Joseph Stern. Welcome to an extra episode of Amicus that we're bringing to you as the dust settles on historic Supreme Court arguments in Trump v. The birthright citizenship case. If you credit the government's theory, the citizenship of millions of Americans, past, present and future could be called into question.

[B]

We're in a new world now, as Justin Alito pointed out to you, where 8 billion people, people are one plane ride away from having a child who's a U.S. citizen. Well, it's a new world. It's the same Constitution.

[A]

Before we get into the details, let's just start with the top line. This case is a challenge to Trump's executive order denying birthright citizenship to children who are born in the United States, to parents who are undocumented immigrants and temporary visa holders. Every lower court has found that it violates the 14th Amendment 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. Last term, the court had a chance to consider the executive order, but instead decided to roll back nationwide injunctions. We don't need to revisit that trauma, because on Wednesday, the justices squarely addressed the merits. They did so with Trump in the room because he decided to become the first sitting president to attend Supreme Court arguments in person, though he reportedly left after Solicitor General John Sauer wrapp up. Joining me to discuss Wednesday morning's highs and lows is Evan Bernick, a professor at Northern Illinois University College of Law and co author of Birthright Citizenship and the Dunning School of Unoriginal Meanings. He also co authored a significant amicus brief in this case and was listening to the arguments as they happened. Evan, welcome.

[C]

Thanks, Mark. Glad to be here.

[A]

Just to put my cards on the table, my view is that these arguments went very poorly for Trump, with only maybe two justices seriously entertaining the idea of upholding Trump's order. Do you agree?

[C]

I agree. I would say literally two justices are seriously considering upholding Trump's order, and the other seven justices are firmly in agreeance with the lower courts that unanimously rejected the order as unconstitutional. At least a couple of the justices appointed by Trump were outright hostile to the solicitor General's arguments, and it became increasingly obvious over time. And those were Justices Barrett and Gorsuch.

[A]

And we can just name and shame the two who might be open to upholding the order. No one will be surprised. It was Justices Clarence Thomas and Samuel Alito, and we will get to them later. But before we dive into the individual justices questions, you co authored a fantastic law review article exploring the original meaning of the 14th Amendment. And just based on what you heard Wednesday across the board, do you think that a critical mass of the justices basically get it and like, weren't swayed by all of the revisionist pseudo scholarship that was cooked up in the last year or so to support Trump?

[C]

I would say that. And I would say that even though the Solicitor General led with an appeal to original public meaning, he quickly found himself in a great deal of difficulty trying to toggle between two very different revisionist accounts of the citizenship clause that were worked up over the course of the last year to support the Executive order. One of those theories that the 14th Amendment incorporates British common law, but British common law includes a requirement of allegiance that cashes out in loyalty, that cashes out in some kind of domicile requirement. The other theory holds that actually we deliberately departed from British common law to incorporate a domicile requirement. He couldn't choose between those two theories. He tried to toggle between them. And the justices who were intelligent enough to follow the tenor of an originalist sou. Arguments leapt at him very quickly. And we're not buying it.

[A]

Slate members can access our conversation in full right now. You can subscribe to Slate plus directly from the Amicus show page on Apple Podcasts and Spotify, or visit slate.comamicusplus to get access wherever you listen. By joining, you'll unlock a vast array of member benefits, including weekly bonus episodes from us at Amicus and ad free listening across Slate Podcasts, early listens of cool new stuff we're cooking up, and unlimited [e-mail] Most importantly, you'll be supporting our work, and we are so grateful for that. That's slate.com amicusplus to get access. Dalia will be with me for your regularly scheduled Amicus episode on Saturday morning. We'll see you.