Supreme Court Appears Likely to Rule Against Trump on Birthright Citizenship as President Watches From the Gallery

Donald Trump became the first sitting president to attend Supreme Court oral arguments, watching from the gallery as justices from across the ideological spectrum dismantled his executive order ending birthright citizenship. Even Trump-appointed justices questioned the order’s constitutionality. Chief Justice Roberts told the government’s lawyer: “It’s the same Constitution.”

No sitting president has ever attended oral arguments at the Supreme Court. Donald Trump, who has never met a norm he did not consider a personal challenge, showed up on Wednesday morning and took a seat in the gallery. He sat through two hours of arguments. He did not enjoy what he heard.

The case

At issue is Trump’s executive order, signed on his first day back in office in January 2025, which attempted to end birthright citizenship for children born on US soil to parents who are not citizens or lawful permanent residents. The Fourteenth Amendment states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” Trump’s order argued that undocumented immigrants are not “subject to the jurisdiction” of the United States, and therefore their children born here are not citizens.

Lower courts blocked the order immediately. The administration appealed. And now the nine justices must decide whether a president can, by executive fiat, redefine one of the most fundamental provisions of the Constitution.

The arguments

Solicitor General D. John Sauer argued that the phrase “subject to the jurisdiction thereof” has always excluded certain categories of people — diplomats, enemy combatants, and, he contended, those present unlawfully. Justice Sotomayor interrupted within minutes: “That interpretation would have rendered the amendment meaningless the day it was ratified.”

But the devastating blows came from the right side of the bench. Justice Gorsuch, a Trump appointee, asked Sauer whether the government’s reading would mean that undocumented immigrants cannot be prosecuted for crimes committed on US soil, since they would not be “subject to the jurisdiction” of American law. Sauer struggled to answer. Justice Barrett, another Trump appointee, pressed further: “You’re asking us to read the Fourteenth Amendment as if it contains a clause that its drafters deliberately chose not to include.”

Chief Justice Roberts delivered the line that will lead the evening news: “Counsel, the Fourteenth Amendment was ratified in 1868. It said what it said then, and it says the same thing now. It’s the same Constitution.”

What happens next

The Court is expected to rule by the end of June. Based on the tenor of oral arguments, the order will almost certainly be struck down, likely by a 7–2 or 8–1 margin. Only Justice Thomas appeared sympathetic to the government’s position. Justice Alito asked pointed questions but seemed unconvinced.

For Trump, the loss is predetermined but the spectacle was the point. He showed up to the Court to demonstrate that he is not afraid of any institution, even the one about to hand him a defeat. For the Court, the case is simple. The Fourteenth Amendment is 158 years old. Its text is clear. No president can amend the Constitution by executive order. Not even one watching from the gallery.