The Birthright Citizenship Arguments Are a Reminder that the Independent Judiciary Is a Good Thing 

Adding to his list of broken norms and precedents, on April 1, President Donald Trump sat in the audience during the Supreme Court’s oral arguments over his executive order ending birthright citizenship. As the court’s sketch artist captured, Trump stared down the justices as they questioned his Solicitor General, D. John Sauer. The president left early, walking out while the plaintiff’s lawyer presented. 

The Associated Press characterized Trump’s move as “flex of presidential power and prerogative.” But the opposite is more likely true: Sitting among the crowd at ground level, below the elevated stage of the bench, Trump betrayed his impotence. 

He put three justices on the bench, and during the oral arguments, none pulled any punches.  

Justice Amy Coney Barrett asked Sauer what should be done with children born in the United States to unknown parents. Sauer began to cite a clause from the U.S. Code when Barrett cut him off: “Yeah, yeah, yeah, yeah, but what about the Constitution?” A flustered Sauer was unable to give a direct answer. 

Justice Neil Gorsuch challenged the core of Sauer’s argument, which is that the Fourteenth Amendment’s citizenship clause applies to those “subject to the jurisdiction” of the United States, that those subject have “direct and immediate allegiance” to the United States, and “lawful domicile is the status that creates the requisite allegiance.” But Gorsuch cut through that tenuous chain: “It’s striking that in none of the debates do we have parents discussed … And you don’t see domicile mentioned in the debates … the absence is striking.” 

Justice Bret Kavanaugh questioned why Sauer pointed to European countries without birthright citizenship as proof that ending it in the U.S. would not create a “humanitarian crisis.” “I guess I’m not seeing the relevance as a legal constitutional interpretive matter necessarily,” chided Kavanaugh, softening the blow with “although I understand it’s a very good point as a policy matter.” Sauer conceded, “I largely agree with that.” 

Chief Justice John Roberts, nominated by a Republican president but not Trump, had an arch rejoinder to Sauer’s argument, “we’re in a new world now” where, unlike when the Fourteenth Amendment was ratified, “eight billion people are one plane ride away from having a child who’s a U.S. citizen.” The black-robed originalist replied, “Well, it’s a new world. It’s the same Constitution.” 

Trump didn’t nominate his most reliable defenders on the Court, Samuel Alito and Clarence Thomas. Are they activist judges and political hacks often willing to twist themselves in intellectual knots to engineer partisan outcomes? Yes. But that’s their choice, not because they have any indebtedness to Trump. 

While we don’t know how the Court will rule, the Court’s questioning led nearly all Supreme Court watchers to conclude that Trump would lose. At a minimum, four Republican-appointed justices were uncowed by Trump’s presence and took every opportunity to find the weaknesses in Sauer’s case.  

Of course, the birthright citizenship performances of Barrett, Gorsuch, Kavanaugh, and Roberts don’t make up for every poorly reasoned opinion they have penned. But it exemplifies how essential the Constitution’s independent judiciary is to the durability of American democracy.  

Even though Trump was able to appoint one-third of the Court, and another third came from Republican predecessors (one from George H.W. Bush and two from George W. Bush), the president has no direct leverage over the justices upon confirmation. Trump can insult them on social media, criticize their rulings in his State of the Union addresses, and glare at them during oral arguments. But the justices need not succumb to presidential pressure, as they did not when denying Trump the power to impose tariffs on specious claims of an emergency (with Kavanaugh dissenting with Alito and Thomas) and to send the National Guard to states uninvited (with Gorsuch subbing in for Kavanaugh in dissent).  

You may not consider Barrett, Gorsuch, Kavanaugh, and Roberts to be brilliant or heroic, but that only underscores the brilliance of the Founders. By constitutional design, Supreme Court justices, as well as lower court judges, do not need exceptional reservoirs of intelligence or courage to exercise their own judgments and ignore presidential pressure thanks to life tenure. 

As I argued last year, after several emergency orders from lower-court judges slowed Trump’s rollout of executive orders, it’s a relief that, during the Joe Biden presidency, Democrats resisted activist pressure to pack the Supreme Court.  

Frustration with the Trump-shaped, precedent-shredding, radically right-wing Court was palpable. Democrats were understandably infuriated by how Senate Republicans, led by Mitch McConnell, ruthlessly obstructed Barack Obama from filling the vacancy created by Antonin Scalia’s death in 2008, an election year, and then four years later fast-tracked Barrett’s nomination after Ruth Bader Ginsberg’s death, days before Election Day. But Court packing would have required abolishing the legislative filibuster on a party-line vote, then passing legislation adding seats to the Court, and then filling those seats. If Washington Democrats had done that while holding a governing trifecta in 2021 and 2022, Trump’s Republicans would have done the same in 2025 without skipping a beat.  

In the alternate timeline where Trump and a supine Senate could install flunkies on the Court at will, all of his executive edicts would be law. End of birthright citizenship. National Guard occupying states. Unlimited tariff powers. Most unnerving, presidential commandeering of elections. Democracy would die in broad daylight.  

The dangers of court-packing don’t negate arguments for other judicial reforms, such as 18-year term limits. But the prerequisite to such reforms almost surely involves a Democratic party-line abolishment of the filibuster. And once one party can remake the judiciary by itself, so can and will the other, however dramatically and radically it wishes. The once-independent judiciary would no longer be politically insulated, creating an opening for an authoritarian-minded party to drive a stake through it if it controlled the Oval Office and Congress. 

Because no governmental structure can dictate individual behavior, there will always be judges who consciously or subconsciously make themselves presidential poodles, for better or worse. 

Abe Fortas was a longtime aide to Lyndon Johnson who continued to serve as an informal presidential adviser after Johnson tapped him for the Supreme Court. However, he insisted they didn’t discuss judicial business. (Johnson’s attempt to elevate Fortas to Chief Justice was filibustered, then Fortas was pressured to resign during the Richard Nixon administration.) While Justice Owen Roberts denied any substantive change in his views, we have evidence that he no longer challenged the constitutionality of New Deal legislation after Franklin Delano Roosevelt began threatening to pack the Court. (Once Roosevelt formally proposed such a scheme, it was a political disaster.) In the most shameful episode of presidential influence on the Supreme Court, President-elect James Buchanan directly lobbied the Court to issue a broad opinion in the Dred Scott case to settle the national debate over slavery. The Court obliged by declaring Blacks, enslaved or free, are not citizens and have no constitutional rights. 

But these examples speak to individuals, not to the scope and structure of the federal judiciary. As Alexander Hamilton argued in Federalist No. 78, “liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments.” When individual jurists join forces with the President or Congress to harm liberty, the result is terrible. Still, no Constitution can prevent every such instance. Yet ours can and does create space for the judiciary, so it need not be a Quisling. 

If there is any saving grace in Trump’s stress tests of the Constitution, it’s that we are seeing why the Founders made decisions that might seem counterintuitive but have proven their worth for 250 years.  

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