U.S. Supreme Court Justice Ketanji Brown-Jackson left many scratching their heads with a confusing and frankly bizarre response to the Trump administration’s arguments in defending President Donald Trump’s Day One executive order ending birthright citizenship.
The order seeks to end automatic citizenship guarantees to children born to illegal immigrants or others who have no legal right to be in the United States. During the proceedings, Brown Jackson used a hypothetical example while discussing the concept of allegiance, suggesting that an individual who commits a crime in another country would owe “allegiance” to that country’s laws and legal authority.
“I was thinking, I, a U.S. citizen am visiting Japan. And what it means is that if I steal someone’s wallet in Japan, the Japanese authorities can arrest me and prosecute me,” Jackson said. “It’s allegiance meaning can they control you as a matter of law. I can rely on them if my wallet is stolen to, under Japanese law, go and prosecute that person who had stolen it. So there’s this relationship, even though I’m just a temporary traveler, I’m just on vacation in Japan, I’m still locally owing allegiance in that sense.”
“Is that the right way to think about it? And if so, doesn’t that explain why both temporary residents and undocumented people would have that kind of allegiance just by virtue of being in the United States?” Jackson continued.
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The justices questioned Solicitor General D. John Sauer, who argued on behalf of Donald Trump, as well as Cecilia Wang of the American Civil Liberties Union, during arguments over the legality of the executive order signed at the start of Trump’s second term.
Several of the justices, including Neil Gorsuch, raised questions about efforts to limit birthright citizenship during the proceedings.
Chief Justice John Roberts challenged Sauer on arguments that birthright citizenship is being exploited by wealthy foreigners. Justice Amy Coney Barrett also questioned how the administration’s interpretation would apply in historical contexts, including to formerly enslaved individuals.
Brown Jackson has previously engaged in debates with other members of the court, including Justices Sonia Sotomayor and Elena Kagan. She could not get a single justice to join her dissent in the case, Chiles v. Salazar, which upheld a Christian counselor’s right to talk to gender-confused children about feeling comfortable in their own bodies.
The United States is one of just 30 countries that grant birthright citizenship without broad restrictions. That is rooted in the Fourteenth Amendment, adopted after the Civil War, which the administration argued was designed to provide citizenship to newly freed slaves and was never intended to be extended to persons who crossed into the U.S. illegally.
During his Wednesday evening show, Fox News host Sean Hannity said that, according to 2023 figures, around 10 percent of all children born in the U.S. were born to illegal alien parents. That amounts to around 225,000 and 250,000 children, along with 70,000 born to temporary visitors, according to estimates from the Center for Immigration Studies (CIS).
Donald Trump became the first sitting president in U.S. history to attend a Supreme Court oral argument. He argued on Truth Social that foreign countries are “selling citizenships” for their own financial gain. Additionally, he stated on Tuesday that birthright citizenship was intended to provide rights to the children of freed slaves, not to the descendants of illegal immigrants, the Daily Caller reported.
In a column for Fox News, legal analyst and attorney Gregg Jarrett said that one focus of Sauer’s argument was the phrase “subject to the jurisdiction thereof” within the Fourteenth Amendment.
“But what did the framers intend when they inserted the operative phrase?” he wrote. “Those five words consumed a good deal of the high court’s discussion on Wednesday.”
“Exhibiting his knowledge of the 1866 debate, Sauer referred back in time to the sponsors of the amendment, who explained that it meant full and complete allegiance to the U.S. and ‘not owing allegiance to any foreign power,’” he added.