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Friday afternoon brought a significant development in President Donald Trump’s quest to extra-constitutionally restrict birthright citizenship, when the Supreme Court granted cert in Barbara v. Trump. The case will be heard early next year. Last year’s birthright citizenship case was a technical—but vitally important—dispute around the powers of federal district court judges. This time, the administration is swinging for the fences in an effort to do away with the substance of the 14^th Amendment once and for all. On this week’s Amicus podcast, co-hosts Dahlia Lithwick and Mark Joseph Stern discussed the surreal proposition that a case that should never exist is now poised to be taken seriously as a matter of law. A portion of their conversation is excerpted below, edited and condensed for clarity.

Mark Joseph Stern: This is a clean vehicle for the justices to decide whether the Constitution does, in fact, grant birthright citizenship to virtually all people born here. Trump issued an executive order on his first day back in office, on Jan. 20, 2025, that purported to strip birthright citizenship from the children of immigrants who are here on temporary visas, as well as undocumented immigrants moving forward. That, of course, violates the plain text of the 14^th Amendment, a federal statute, and more than 120 years of Supreme Court precedent. But he did it anyway. 

We thought we were going to get a big decision on this last term, but in Trump v. CASA, the Supreme Court ended up taking away the nationwide injunctions that had blocked the policy instead. This time around, Barbara v. Trump is a pretty clean shot at the fundamental question on the merits: Can Trump do this? The Justice Department is not trying to fight any kind of procedural or equitable issues here. This was a class action, and the administration accepts that. The lower courts ruled against the government. The administration is saying, “Just give us a win and tell us that we can implement this policy.” So this is the fight: This is the big one we’ve been waiting for after the fake out last year. By the end of June 2026, the Supreme Court will have told us whether or not we still have a 14^th Amendment.

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Finally, we’ll get a decision on the merits here. Photo illustration by Slate. Photos by Win McNamee/Getty Images, Getty Images Plus, and SupremeCourt.gov.

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