r/supremecourt

I’m mainly interested in this from an outcome perspective. I realize this touches on policy, but I don’t think it’s purely a policy discussion, so I decided to post it here. If the mods disagree, I’m happy to delete it or accept its removal.

Vice President JD Vance has suggested that Republicans could relitigate the birthright citizenship issue in the future and potentially reverse it.

I suppose that could work if, at some point, one or more of the justices who uphold birthright citizenship retire and are replaced, creating a new majority.

But it also seems to me that, if that happened, a future Court with a different majority could simply relitigate the issue again and reverse it back. (I realize this could happen even without a “liberal majority”; I’m just using that label as shorthand.)

I don’t see why that future Court would necessarily refrain from overturning the hypothetical precedent Vance is hoping for out of respect for stare decisis. It could just as easily argue that the earlier decision was itself the break from longstanding precedent, and that recognizing birthright citizenship had been the governing rule for many decades before Trump v. Barbara. (Even if the hypothetical new precedent had been in place for several years by then, I’m not sure that alone would stop a future Court from relying on the longstanding understanding of birthright citizenship and overruling it.)

Also, regardless of where people here come down on the merits, my prediction is that a majority of legal scholars and lawyers will still believe the Fourteenth Amendment provides near-unconditional protection for birthright citizenship. If that’s true, a future Court might very likely view overturning the hypothetical precedent as entirely legitimate.

That leads to another question: if a future Court restored birthright citizenship, what would happen to people born during the period when the hypothetical Vance precedent was in effect? My assumption is that the Court (or Congress) would create some relatively straightforward process for those people to establish or confirm their citizenship.
But then what?

Suppose the Court later becomes conservative again. Could the issue simply be relitigated once more and flipped back again? If so, what would happen to the people whose citizenship had already been recognized under the intervening decision?

I’d be interested in hearing people’s thoughts on both Vance’s apparent strategy and the possible short- and long-term consequences if this issue were to keep returning to the Court.

For transparency(?), I personally support the decision of Trump v. Barbara.

Gift link attached here. Summary:

>Kate Shaw, a contributing Opinion writer, hosted a written online conversation with William Baude, a law professor at the University of Chicago, and Stephen I. Vladeck, a law professor at Georgetown and the author of “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic,” to dissect and debate the state of the Supreme Court and the sweeping cases at the end of the court’s term.

Highlights include Baude referencing his speculation we may be in a constitutional crisis and Vladeck describing the court as deserving "the same credit we might give to the arsonist who shows up with a fire extinguisher" for their actions blocking Trump this term.

An analysis of the June 30 US Supreme Court ruling in Trump v. Barbara through a strategic rather than legal lens, arguing that citizenship law is one of the oldest instruments of statecraft and that the litigation itself is a datum about American power.

The historical pattern is consistent: expanding polities seek citizens and absorb them, because they need soldiers, taxpayers and settlers. Rome enfranchised Italy after the Social War; Caracalla extended citizenship empire-wide in 212 AD, and Cassius Dio explained it bluntly as a tax-base play. Contracting polities do the reverse. Britain abolished pure jus soli in 1981, once the empire the rule was built for had dissolved; Ireland followed by referendum in 2004. States tighten membership after expansion ends, not during it.

The thesis worth debating: strong civilizations absorb people because they trust their own gravitational pull. A polity starts defending itself against people when it stops believing it will assimilate them. On that reading, the fact that the US litigated its own openness at all is the signal, regardless of the outcome. Meanwhile Moscow runs the opposite play, manufacturing citizens abroad via passportization in Abkhazia, South Ossetia and the Donbas.

The counterargument is real and I take it seriously in the piece: convergence toward conditional citizenship may be maturation for an age of mass mobility, not decline. Full analysis, including the fiscal paradox (the US restricts intake while taxing by citizenship, which is strategically incoherent by Caracalla's own logic).

Pun intended. Anyway, before I actually discuss, I'm gonna be transparent here:

1. I really, really want Wickard gone, not least because it led to Raich, which would literally allow Congress to reinstate the National Prohibition Act (and go much, much further) without any need for re-ratifying the Eighteenth Amendment.
2. I celebrated the end of Chevron via Loper Bright because Chevron was to statutes what Wickard and Raich have been to what I only semi-jokingly call the “Everything-Is-Commerce” Clause.
3. I am similarly celebrating the end of Humphrey's Executor via Slaughter.

So it may just be confirmation bias and/or pareidolia combined with circumstantial evidence, but it seems to me that the Court has been signaling a desire to overrule Wickard and the “substantial” “effect” “test,” if not at least Raich. For one, Chevron is analogous to Wickard (see above). But for another, there have also been a couple other developments over the years:

1. In NFIB (2012), a majority of Justices, two of whom had been in the Raich majority, held that Congress cannot anticipate activity, pretty much in direct contradiction with Raich (drugs could/might cross State lines), and arguably even with Wickard. One of those flip-floppers, Justice Scalia, also notably wrote in his treatise with Bryan A. Garner, Reading Law (2012), that Humphrey and Wickard were both “willful judicial distortions,” the latter of which “expanded the Commerce Clause beyond all reason.”
2. In both NFIB (regarding the Commerce Clause) and Loper Bright (2024) (regarding statutes), the Court re-emphasized that while courts may defer as to questions of fact, questions of law are strictly the province of courts, directly contrary to what the Court did in Raich (i.e. defer to Congress' declaration that a ban on possession is necessary and proper), and, again, arguably contrary to what the Court did in Wickard.
3. In Sackett (2023), the Court eschewed a “‘similar[] situat[ion]’” statutory test espoused by Justice Kennedy in an earlier case that conspicuously resembled the aggregation in Wickard and subsequent cases as “vague.”
4. In Dobbs (2022), which in-/famously overruled Roe, the Court likewise said in relevant part that Casey was unworkable because of its employment of the word substantial, which the Court noted “is often open to reasonable debate.”
5. And in Slaughter (handed down June 29 of this year), the Court just dealt a serious blow to the notion of governmental reliance for stare decisis purposes. I'll just add a couple alterations to make the analogy more plain:

>Congress may well have relied on [Wickard and Raich] in taking more power for itself, but that is hardly one of the legitimate reliance interests that our precedents contemplate. No branch may rely on adverse possession to claim power that the Constitution vests elsewhere [such as in the several States or the People].

>The dissent contends that we ignore the reliance interests of ordinary Americans and regulated firms alike. Quite the contrary. In its valiant search for reliance interests, it is the dissent that somehow misses maybe the most important one: the reliance interests of the American people in the preservation of our constitutionally promised liberties. The diffusion of power carries with it a diffusion of accountability. When power is exercised well, the people know whom to thank; when power is exercised poorly, they know whom to blame—and whom to fire. That is the very premise of our system of government. We adhere to that system today not in spite of the reliance interests of all Americans but because of them.

Cf. Slaughter, slip op. at 24–25 (cleaned up).

So far as that last point goes, I saw this coming a mile away, since it was mentioned briefly in Lawrence (2003), then expounded upon slightly more in cases like Gant (2009) and Citizens United (2010), before further emphasis in Janus (2018) and then McGirt (2020) and Justice Gorsuch's opinion in Ramos (2020) (the latter of which is quoted in relevant part in Slaughter), and then the Court's opinion in Loper Bright (2024): the government can't rely on erroneous precedent at the expense of those whom it's supposed to benefit. As the Preamble emphasizes: “[T]he People . . . ordain[ed] and establish[ed] th[e] Constitution” “to secure the blessings of Liberty to [them]selves and [thei]r Posterity,” not to secure infinite power to the Government thereby constituted. And even further back in time, just a day shy of 250 years ago at this point, the Declaration of Independence stressed that “[g]overnments are instituted among men” “to secure” their “unalienable Rights” (“among the[m]” being “Liberty”), not to “reduce them under absolute Despotism.”

Suffice it to say, but this is a happy sestercentennial for me.

An interesting article about what Text, History, and Tradition analysis should do with "bad traditions", like the black codes that Hawaii relied on in Wolford. Excerpt:

>The Supreme Court’s turn to “history and tradition” raises the critical question of what to do about “bad traditions.” If the customs of yore were driven by racial prejudice, for example, what weight should they carry in interpreting the Constitution? In the Second Amendment case Wolford v. Lopez, the Court confronted this question. Justice Alito’s majority, Justice Barrett’s concurrence, and Justice Jackson’s dissent offered divergent responses. The back-and-forth brought the problem of bad traditions into sharp relief and highlighted the uneasy place of moral evaluation in traditionalist analysis.

The 14th amendment is pretty straightforward. “All persons, born on US soil… are US citizens”” and subject to the jurisdiction of the United States” ( which means that persons of a foreign invading force - is Trump an invading force?-can not have children born US citizens). The United States in 1898 even came up with a term “ Jus Solis”( right of the soil) to explain this amendment. The Supreme Court is suppose to interpret the constitution, not “ Willy Nilly” decides that Amendments no longer apply to certain people. ( and even a congressional law can’t change this fact)The fact that at least 3 members of SCOTUS ruled that this amendment is “ no longer valid “ is troubling/

Here is the Stat Pack pdf for the 2025 term, so happy that it's back and that SCOTUSblog is not in the ash heap of history. Here's the link to the article separately as well. Their compilations are very interesting, if I have on critique, it's that I wish they tested for statistical significance on some of this stuff. I think it would be helpful for us end readers sifting through the data to know ultimately is the data was useful. But, who am I to complain, the data is beautiful and still very interesting.

Caption	Donald J. Trump, President of the United States v. Barbara
Summary	Children born in the United States to parents unlawfully or temporarily present are “subject to the jurisdiction” of the United States and are citizens at birth under the Fourteenth Amendment’s Citizenship Clause.
Author	Chief Justice John G. Roberts, Jr.
Opinion	http://www.supremecourt.gov/opinions/25pdf/25-365_4hdj.pdf
Certiorari	Petition for a writ of certiorari before judgment filed. (Response due October 29, 2025)
Case Link	25-365

Judge	Majority	Concurrence	Dissent
Roberts	Writer
Sotomayor	Join	Join
Kagan	Join
Barrett	Join
Jackson	Join	Writer
Thomas			Writer
Gorsuch			Writer
Kavanaugh		Writer
Alito			Writer

ROBERTS, C. J., delivered the opinion of the Court, in which SOTOMAYOR, KAGAN, BARRETT, and JACKSON, JJ., joined.

JACKSON, J., filed a concurring opinion, in which SOTOMAYOR, J., joined as to the introduction and Part I. KAVANAUGH, J., filed an opinion concurring in the judgment and dissenting in part.

THOMAS, J., filed a dissenting opinion, in which GORSUCH, J., joined.

ALITO, J., and GORSUCH, J., filed dissenting opinions.

Caption	West Virginia v. B. P. J., By Her Next Friend and Mother, Heather Jackson
Summary	Title IX allows schools to provide separate women’s and men’s sports teams defined by biological sex; West Virginia and Idaho did not violate the Equal Protection Clause of the Fourteenth Amendment by maintaining female sports teams for biological females.
Author	Justice Brett M. Kavanaugh
Opinion	http://www.supremecourt.gov/opinions/25pdf/24-43_2b35.pdf
Certiorari	Petition for a writ of certiorari filed. (Response due August 15, 2024)
Amicus	Brief amicus curiae of United States Conference of Catholic Bishops filed. VIDED.
Case Link	24-43

Judge	Majority	Concurrence	Dissent
Roberts	Join
Thomas	Join
Alito	Join
Sotomayor			Writer
Kagan			Join
Gorsuch	Join	Writer
Kavanaugh	Writer
Barrett	Join
Jackson			Writer

KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS, ALITO, GORSUCH, and BARRETT, JJ., joined.

THOMAS, J., and GORSUCH, J., filed concurring opinions.

SOTOMAYOR, J., filed an opinion concurring in the judgment in part and dissenting in part, in which KAGAN and JACKSON, JJ., joined.

JACKSON, J., filed an opinion concurring in the judgment in part and dissenting in part.

Date: 07/02/2026

Miscellaneous Order

I published this earlier this morning in The American Prospect on Trump v. Slaughter and Trump v. Cook. I argue that Congress had been implementing the same antimonopoly logic in creating independent agencies as the founders did when they wrote the Constitution.

Caption	Donald J. Trump, President of the United States v. Rebecca Kelly Slaughter
Summary	The Federal Trade Commission’s for-cause removal provision, 15 U. S. C. §41, is contrary to the separation of powers enshrined in the Constitution.
Author	Chief Justice John G. Roberts, Jr.
Opinion	http://www.supremecourt.gov/opinions/25pdf/25-332_qn12.pdf
Certiorari
Case Link	25-332

Judge	Majority	Concurrence	Dissent
Roberts	Writer
Alito	Join
Sotomayor			Writer
Kagan			Join
Gorsuch	Join
Kavanaugh	Join
Barrett	Join
Jackson			Join

ROBERTS, C. J., delivered the opinion of the Court, in which ALITO, GORSUCH, KAVANAUGH, and BARRETT, JJ., joined, and in which THOMAS, J., joined as to all but Part III–B. GORSUCH, J., filed a concurring opinion.

SOTOMAYOR, J., filed a dissenting opinion, in which KAGAN and JACKSON, JJ., joined.

Date: 06/30/2026

Order List

Caption	National Republican Senatorial Committee v. Federal Election Commission
Summary	The Federal Election Campaign Act’s restrictions on a political party’s spending on campaign activities in coordination with candidates, 52 U. S. C. §30116(d), violates the First Amendment.
Author	Justice Brett M. Kavanaugh
Opinion	http://www.supremecourt.gov/opinions/25pdf/24-621_h315.pdf
Certiorari	Petition for a writ of certiorari filed. (Response due January 6, 2025)
Case Link	24-621

Judge	Majority	Concurrence	Dissent
Roberts	Join
Thomas	Join
Alito	Join
Sotomayor			Join
Kagan			Writer
Gorsuch	Join
Kavanaugh	Writer
Barrett	Join
Jackson			Join

KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS, ALITO, GORSUCH, and BARRETT, JJ., joined.

KAGAN, J., filed a dissenting opinion, in which SOTOMAYOR and JACKSON, JJ., joined.