John Roberts told Donald Trump exactly what he thinks
By Joan Biskupic
When Chief Justice John Roberts and the eight associate justices took the Supreme Court bench on Wednesday for a fundamental debate over American identity, they did not acknowledge the presence of Donald Trump in the courtroom.
That was not unexpected: Wednesday marked the first time in modern history that the president of the United States attended an oral argument. But Trump was there as a litigant and spectator, not in any formal role.
Then, in a move that was surprising, Roberts showed his hand.
The chief justice can be cagey during arguments. In high-profile cases, he often sends mixed signals and keeps his options open.
But during the momentous session, Roberts made plain his skepticism for the Trump position that would upend more than a century of constitutional history and tradition. The chief justice cast doubt on the Trump administration’s alternative view of the reach of the 14th Amendment’s birthright citizenship guarantee.
Roberts particularly dismissed US Solicitor General John Sauer’s contention that contemporary immigration problems require a revision of the understanding that virtually all children born on US soil become American citizens, irrespective of their parents’ immigration status.
Echoing Trump assertions, Sauer argued that “a sprawling industry of birth tourism” has led to “uncounted thousands of foreigners from potentially hostile nations” arriving in the US to have their children here.
“We’re in a new world now,” Sauer told Roberts, “where 8 billion people are one plane ride away from having a child who’s a US citizen.”
“Well, it’s a new world,” Roberts rejoined. “It’s the same Constitution.”
The tone was especially biting for a chief justice known for his measured public comments. He was aware that the case was drawing inordinate interest. Television and radio networks aired the arguments live. All the courtroom seats, and extra chairs in the alcoves, were filled. Among the people in a special section reserved for spouses and guests of the nine justices was actor Robert De Niro, a Trump critic.
All told, over more than two hours of arguments, there appeared to be no majority among the justices to reinterpret the established view of the 14th Amendment, which dictates, “all persons born or naturalized in the United Sates, and subject to the jurisdiction thereof, are citizens of the United States.” Historically, only a few, specific categories of children were exempt, such as those born to foreign ambassadors or invading armies.
Appealing the widespread sentiment of lower court judges against the administration, Sauer latched onto the phrase “subject to the jurisdiction” and contended that anyone on US soil unlawfully or temporarily, such as on a student visa, is not sufficiently subject to US jurisdiction.
Roberts and other key conservative justices challenged that constitutional rationale as well as the practicalities of a position that would require delving into children’s parentage.
“What would you do with what the common law called ‘foundlings,’” asked Justice Amy Coney Barrett. “The thing about this is then you have to adjudicate, if you’re looking at parents and if you’re looking at parents’ domicile, then you have to adjudicate both residence and intent to stay. What if you don’t know who the parents are?” (A concern for children who might be abandoned at birth arose in some of the religiously tinged briefs submitted in the case.)
“I think there are marginal cases,” Sauer said, as Barrett posed a series of difficult hypothetical scenarios.
Shifting around and leaving early
Trump’s presence on Wednesday lent him little special deference, from his seat in the courtroom to the apparent consensus on the bench.
When Trump arrived, about 10 minutes before the session was to begin, he was quietly escorted to the public section of the courtroom, behind the area reserved for members of the Supreme Court bar. Trump and his entourage, which included Attorney General Pam Bondi and Commerce Secretary Howard Lutnick, were seated in the first row of the general public section. The courtroom is typically hushed, but spectators began buzzing and craned their necks as Trump, in a dark suit and signature red tie, took his place.
He wasn’t quite settled. He switched seats, from one end of the row, to the other, perhaps for a better view of the bench. As he waited for the session to begin, Trump looked around, seemingly taking in the elaborate setting, with its ornate rosette-patterned ceiling and intricate marble friezes of Moses, Solomon and other depicted “great lawgivers of history.”
Trump’s policies and personal conduct have been subject to major lawsuits since his first term in office, beginning with Trump v. Hawaii, early in his first term, involving his travel ban on certain majority-Muslim countries; Trump v. United States, testing his personal claim of immunity from criminal prosecution; then Trump v. Casa, regarding when lower court judges can issue wide-reaching injunctions against his challenged policies. (Trump won those cases.)
He did not witness any of those oral arguments, and while Trump had declared last November that he would attend the dispute over his sweeping tariffs on foreign goods, he decided against it at the last minute. (Trump lost that case.)
It was after February’s tariff decision that Trump fired off another set of public denunciations against the justices. “I’m ashamed of certain members of the court, absolutely ashamed for not having the courage to do what’s right for the country.”
Regarding Barrett and Justice Neil Gorsuch, two of his appointees who voted with the majority against him, Trump said they were an “embarrassment to their families.”
The birthright citizenship case may mean even more to Trump. He signed the order limiting the right on his first day back in office, in January 2025, and his presence at the court demonstrated his commitment to it.
The order represents the boldest move of his anti-immigrant agenda, striking at the core of American identity and recalling the era of Dred Scott v. Sandford, the infamous 1857 ruling that said Black people could not be citizens.
Trump remained in his seat for all of Sauer’s presentation, which lasted just over an hour. He then stayed for an early portion of the arguments by lawyer Cecillia Wang, of the American Civil Liberties Union, representing the challengers.
About seven minutes in, Trump abruptly stood up and began heading out of the courtroom. The justices continued addressing Wang and did not appear distracted.
Debate over ‘domiciled’
Before he left, Trump would have heard Roberts’ opening question to Wang, which involved the landmark Supreme Court precedent from 1898, United States v. Wong Kim Ark. In that case, the court found that a man born of Chinese nationals who were living in the US was an American citizen. That decision has long stood as an affirmation of the breadth of the 14th Amendment citizenship guarantee.
Sauer, however, had argued that an important element of the holding was that Wong Kim Ark’s parents were essentially permanent residents of the United States, that is, “domiciled,” or subject to the jurisdiction of the US. Sauer differentiated the situation to that of today’s temporary residents or people living in the US unlawfully.
Roberts followed up on that line of argument with Wang.
“We’ve heard a lot of talk about Wong Kim Ark, and you dismiss the use of the word ‘domicile’ in it,” Roberts began. “It appears in the opinion 20 different times and including in the question presented and in the actual legal holding. … Isn’t it at least something to be concerned about to say that since it’s discussed 20 different times and has that significant role in the opinion that you can just dismiss it as irrelevant?”
Wang urged Roberts and the other justices to consider the majority opinion in its entirety, including to understand the 14th Amendment’s “subject to the jurisdiction” phrasing.
She said the Wong Kim Ark decision “starts with a premise that in construing the 14th Amendment Citizenship Clause, we look to the English common law. … Under English common law, if you are born in the dominions of the sovereign, you owe natural allegiance, and those who are present in the dominions of the sovereign owe temporary allegiance for as long as they’re present.”
She acknowledged the few historic exceptions, such as for children of foreign ambassadors, and stressed, “The purpose of the 14th Amendment was to embrace that universal rule of birthright citizenship.”
Roberts did not go further with Wang, and his apparent satisfaction stood in contrast to his response to Sauer as the solicitor general contended the Trump administration could expand on the specific categories of foreigners exempted from birthright citizenship.
“You obviously put a lot of weight on ‘subject to the jurisdiction thereof,’ but the examples you give to support that strike me as very quirky,” Roberts told Sauer. “You know, children of ambassadors, children of enemies during a hostile invasion, children on warships. And then you expand it to a whole class of illegal aliens are here in the country.”
“I’m not quite sure how you can get to that big group from such tiny and sort of idiosyncratic examples,” Roberts added.
While in the courtroom, Trump was unable to say anything, as spectators are prohibited from bringing in phones or other electronic devices. But about an hour after leaving, he seemed to want the final word.
He repeated a prior false claim and said in a Truth Social post, “We are the only Country in the World STUPID enough to allow ‘Birthright’ Citizenship!”
About 30 other countries, in fact, also allow birthright citizenship. Most are in the Western Hemisphere, in North, South, and Central America.
