However, based on the US Supreme Court oral arguments over President Donald Trump’s order banning birthright citizenship, the mood among court observers suggests that the president will lose in a decision this summer.
Several of the conservative justices appeared sceptical of the notion that babies born in the United States to undocumented immigrants are not, in fact, citizens.
For those unfamiliar with the US Constitution, the Fourteenth Amendment says that “All persons born or naturalised in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
The far-right view is that those born to undocumented immigrants fall outside this jurisdiction.
As Georgetown University law professor Randy Barnett argued in Trump’s favor in the Wall Street Journal, the administration isn’t trying to disrupt the “treatment of children born to lawful permanent residents—who nowadays have green cards,” as Trump’s order “maintains birthright citizenship for the children of green-card holders while excluding those whose parents are in the U.S. illegally or on nonresident visas.”
This is weak constitutional reasoning. If the far right believes that America is full of undocumented immigrants living, working, receiving benefits, getting medical treatment and sending their kids to school, it must be because they are following laws, customs and administrative procedures of the state to make it through the day.
The established view is that a child born on US soil to invading foreign soldiers would not be “subject to the jurisdiction thereof”, but a baby born to a family who works every day, stops at stop lights and pays rent on time like green card holders and natural-born citizens is.
The importance of this case for the nativist right can’t be overstated.
Trump’s order originates from a persistent conspiracy theory about “anchor babies,” a subset of the “great replacement” fantasy that invading foreigners enter the US and quickly have a child to maliciously “anchor” themselves in the country, thereby altering the racial, cultural, and religious landscape for future generations.
The president, in a highly unusual move, took a seat in the gallery for oral arguments, breaking the norms of the separation of powers. His presence carried the aura of a mob boss, suggesting, “Nice court you have here. It would be a shame if something happened to it.”
This tension between the president and the Supreme Court, which angered the president when it rejected his tariffs, partly arises from the fact that the far-right extremism of today’s Republican Party is not necessarily aligned with the court’s judicial conservatism.
The belief that Trump will lose isn’t based on personal sympathy that justices might have for the children of immigrants. Instead, the cards appear to be stacked against Trump because the justices focus on the Constitution in ethical dilemmas, much like a rabbi does with the Torah.
The tone was set when the administration’s lawyer suggested that the authors of the Fourteenth Amendment couldn’t have anticipated modern global travel, claiming we live in a “new world.” The conservative chief justice, John Roberts, responded, “It’s the same constitution.”
This difference serves as a reminder that fascism is right-wing, but it isn’t necessarily conservative, as the latter involves some notion of preserving the fundamental foundations of the republic, such as the sanctity of the Constitution. Fascism, however, destroys norms — it’s a revolution from the right.
But even if Trump loses at the court of law, he will win a rhetorical battle.
The Make America Great Again right has almost full control. It has the presidency and its agencies, along with a culture of appeasing all of the president’s worst demands and advancing his craziest instincts.
The Republicans have Congress, and the Democratic Party leadership is asleep at the wheel.
The ownership of American media has moved news coverage and opinion to the right.
The Supreme Court is still friendly to the current president.
“During the first year of this Trump presidency, the Supreme Court overwhelmingly sided with the Trump administration,” wrote University of California-Berkeley Law School dean Erwin Chemerinsky at SCOTUSBlog, who added “there were at least 24 other rulings in 2025 on the Supreme Court’s emergency docket involving Trump administration actions” and that the court “ruled in favor of the Trump administration in 20 and against it four times.”
And yet, the power of MAGA’s fury rests in a feeling of powerlessness, a narrative that decent conservative Americans are oppressed culturally and economically by liberal power structures.
MAGA reactionaries hold that despite Trump’s victory at the ballot box and his take-no-prisoners approach to politics, he is somehow constrained by deeper embedded forces in American society.
The courts, protesters and Democratic mayors are doing everything they can to stop mass deportations and immigrant round-ups, despite the president’s best efforts, their ideology goes.
Now, if Trump loses this case, the pundit class in right-wing media can claim that a robed council of unelected elite sages has thwarted the will of the voters and is forcing a demographic shift in the US population, whether white Christian America approves of it or not.
That’s, of course, in contradiction to the fact that it is the court’s job to interpret law, not draft partisan policy. Axios reported on polling, “Americans overwhelmingly support keeping the Constitution’s guarantee of birthright citizenship.”
But it’s important for Trump’s movement to portray undocumented immigrants as people who exist physically in the US but are completely divorced from the legal structures around them.
This fiction both scares Trump voters into adopting a xenophobic agenda, and it is meant to justify throwing out constitutional freedoms like due process when immigration forces subject American cities to martial occupations.
Trump is feeling other pressure, especially from the economic fallout of his ongoing war against Iran. Following the oral arguments, the president’s approval rating hit an all-time low.
With midterm elections coming up, a loss at the Supreme Court on this issue could be converted into energy for his base.
Trump’s message could be: despite all the destruction of the administrative state, universities, media, and liberalism have endured in just one year, MAGA still faces a formidable enemy.
A Supreme Court rejection of Trump would be a victory, not just for undocumented immigrants but also for those who still believe the Constitution should govern.
But Donald Trump could also turn a court loss to his advantage.
Photograph courtesy of Elvert Barnes. Published under a Creative Commons license.
