Supreme Court Reaffirms Birthright Citizenship, Relying on Originalist Amici

On June 30, 2026, the Supreme Court upheld an injunction blocking President Trump's Executive Order purporting to limit birthright citizenship, reaffirming the centuries-old, foundational promise of citizenship to all those born in the United States and subject to the laws of the United States, what Justice Alito in dissent called "one of the most important decisions in the history of the Court".

The firm represented two leading originalist scholars who have written on the birthright citizenship issue, Evan D. Bernick and Jed H. Shugerman, as amici curiae supporting the respondents challenging the Executive Order. The amicus brief traced the history of the common-law rule of birthright subjecthood from the 16th century through to the Founding, the antebellum American caselaw on the topic, and the Congressional debates on the Civil Rights Act of 1866 and the Fourteenth Amendment. It also showcased the arguments from Professor Shugerman's paper, An Originalist Case for Birthright Citizenship: The Inclusion of “Temporary Sojourners” and of Chinese and Roma, 77 U.C.L.J. (forthcoming 2026).

Chief Justice Roberts delivered the opinion of the Court, which was joined by Justices Sotomayor, Kagan, Barrett, and Jackson. The Court agreed with amici that 1880s sources cited by the Government could not change the meaning of the Fourteenth Amendment's grant of broad birthright citizenship at the time of ratification. Compare Slip Op. at 21-22 with Am. Br. 6-7. And it agreed with amici that an "unbroken line from the English common law" supported the traditional birthright rule. Slip Op. at 25; compare with Am. Br. 6 (invoking an "unbroken line of common-law precedent"). The Court's opinion also cited several historical sources highlighted in the firm's amicus brief. For example, the Court cited William Yates' Rights of Colored Men three times (at 4-5, 10, 26), which was the final source in the amicus brief (at 31). And the Court quoted from several passages of the floor debates on the 1866 Act and Fourteenth Amendment flagged by the amici. Compare, e.g., Slip op. at 9 ("'[E]ven the infant child of a foreigner born in this land is a citizen' under this bill, Trumbull declared.") with Am. Br. 30 ("[E]ven the infant child of a foreigner born in this land is a citizen of the United States long before his father.”).

Justice Jackson filed a concurring opinion that explicitly cited the amicus brief in footnote 59, and credited the amici as "keepers of the 'the call of remembrance' (trained historians)." In the part of her concurrence joined by Justice Sotomayor, Justice Jackson cited Professor Shugerman's forthcoming paper (at notes 37 & 44) and adopted the amici's reading of the debate between Senators Conness and Cowan on citizenship for the children of Chinese immigrants (at 12-14).

The Firm previously represented professors Bernick and Shugerman in amicus briefs supporting birthright citizenship in the precursor cases in the First Circuit (which upheld birthright citizenship) and the Fourth Circuit.

The Bernick and Shugerman amicus brief in the Supreme Court was covered by The New York Times, Bloomberg Law, Mother Jones, The National Law Journal, The Hill, The New Republic, The Catholic Review, Slate's Amicus podcast, Courthouse News Service, JURISTNews, Balkinization, The Originalism Blog, Legal History Blog, the Opening Arguments podcast, The Unpopulist Live podcast, and with compliments from the principal amicus on the other side of the issue.

Firm principal Brendan Benedict served as counsel of record for all three amicus briefs, with assistance from Of Counsel Michael D. Altebrando. The Supreme Court matter was Trump v. Barbara, No. 25-365 (2026).