The Supreme Court’s Birthright Citizenship Ruling Gets History Achingly Wrong

The Supreme Court has found a new way to shrink the Constitution without ever touching it.

In Trump v. CASA, issued on Friday, the court’s conservative supermajority claims it cannot yet decide whether President Donald Trump’s executive order denying birthright citizenship to the children of immigrants who don’t have permanent legal status is lawful. That question, they say, must wait. And so must hundreds of thousands of future Americans who will soon be born on U.S. soil and have been rendered nationless by decree.

In the meantime, the majority announced that lower courts may no longer issue universal injunctions—relief that protects more than the named plaintiffs in a given case—even where a federal policy threatens broad and irreparable harm to classes of people. It recast a question of constitutional magnitude as a dispute over judicial housekeeping, and in doing so, quietly defanged the judiciary’s ability to confront systemic executive branch illegality before it takes root.

To justify this rollback, the majority turns to history. Justice Amy Coney Barrett’s opinion for the court argues that federal courts lack the authority to issue universal injunctions because such remedies were not “traditionally available in courts of equity.” The claim is that equity, at its origin, was narrow and plaintiff-specific. Therefore, so too must be the injunctions issued today.

But the majority, as it has done over and over again, turned to the wrong history—one concerned with procedural lineage and formalism, not the constitutional tradition that governs rights and remedies.

The question isn’t whether chancery courts in 1789 issued nationwide injunctions. They didn’t. The question is whether equity, as evolved and applied in constitutional cases, has ever allowed courts to respond proportionally to the scale of the harm. And the answer is yes.

The majority’s move is part of a familiar project on the right: to dismember modern constitutional doctrine by pretending the law never grew. They invoke original equity the way they invoke original meaning—by narrowing the frame, cherry-picking the record, and refusing to grapple with how the legal question has changed. What’s left is a kind of historical taxidermy, a court concerned with the form of a principle without any thought about the lives the court was meant to protect.

The majority’s version of equity revives the illusion that constitutional enforcement can be boutique, that the courts can vindicate fundamental rights in fragments. But constitutional harm does not always occur one person at a time. Indeed, not now, when the executive branch—under President Donald Trump—has embraced sweeping, often unconstitutional policy by edict, targeting entire classes at once, as with American children of immigrants in this case.

And even if it were strictly true that universal injunctions are suspect as a matter of judicial authority—and it isn’t—the point is beside the one that matters. The question in constitutional cases is not whether a remedy mirrors what equity courts did centuries ago, but whether it responds meaningfully to the alleged violation at hand. That’s why Brown v. Board of Education remains a powerful and appropriate historical example this court cannot answer.

No, Brown did not involve a modern universal injunction issued before merits briefing was complete. But it did something far more essential that should have guided the court’s resolution of this matter: It recognized that when a constitutional violation is systemic, the judiciary cannot respond with surgical minimalism. Brown did not confine its ruling to Linda Brown or to Topeka. It invalidated the legal theory of segregation itself, and in doing so, made plain that some constitutional harms are so sweeping, so deeply embedded, that courts must reach beyond the named plaintiff to cure them.

As Marbury v. Madison declared, “it is emphatically the province and duty of the judicial department to say what the law is”—a duty that includes not just declaration but enforcement. And as The Federalist No. 78 envisioned, the courts were to serve as “bulwarks of a limited Constitution,” empowered to halt unconstitutional exercises of power by the political branches. A nationwide injunction in a case like this—where the executive unilaterally rewrites the Constitution’s citizenship clause to undo its explicitly clear meaning—is not an outlier to that tradition. It is its paradigm. But somehow, that history didn’t make the cut. In CASA, the court turns away from that obligation. It pretends that relief must await final judgment on a policy whose unconstitutionality, if not already self-evident, will be proven only after irreparable harm has rippled through hundreds of thousands of lives.

And in so doing, the court leaned on a fiction: that the legality of denying birthright citizenship to children born on U.S. soil to parents who don’t have permanent legal status is somehow unsettled. It is not. There is no serious historical, legal, or textual argument to support the view that the 14^th Amendment permits such a denial. The amendment grants citizenship to “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.” The children of immigrants are born here. They are subject to U.S. law. They are citizens.

That conclusion has been reaffirmed for over a century, including by the Supreme Court itself in United States v. Wong Kim Ark—a direct repudiation of Dred Scott v. Sandford, which declared that no Black person descended from enslaved Africans could ever be a citizen. It consigned Black Americans to permanent statelessness on the basis that their ancestors had been stolen, violently dehumanized, and forced into a nation that now refused to recognize them. The court rightly corrected that shame. But CASA resuscitates that disgrace. To pretend that the birthright clause is now ambiguous—simply because the brown children in question were born to parents who themselves were born elsewhere—is judicial malfeasance.

As a result of today’s decision, even if the birthright citizenship revocation policy is ultimately struck down, it will have functioned in the meantime—unimpeded, unremedied, and untouchable at scale. The majority treats systemwide relief as judicial overreach. But the real overreach belongs to the executive, which has assumed the power to rewrite the 14^th Amendment by fiat. And the judiciary’s role is not to defer while it happens. It is to stop it in its tracks immediately, in full, and across the board.

Beneath the doctrinal veneer lies something even more disturbing: a fundamentally elitist vision of who deserves constitutional protection. The court’s decision assumes that those harmed by unlawful, sweeping policies will have the awareness, resources, and legal sophistication to vindicate their rights one by one. It imagines a legal system in which every constitutional injury patiently waits its turn in court, brought by a plaintiff with standing, a lawyer, and the means to endure years of litigation. But that is not the country we live in. It has never been. And the court knows it.

To strip lower courts of the power to issue universal injunctions is to deny relief precisely where it is needed most. These injunctions have functioned as an equalizer, and sometimes, are the only way to halt a policy that harms thousands who will never make it to a courtroom.

By foreclosing that tool, the court doesn’t just alter the shape of judicial relief. It redraws the boundary of who counts—whose injuries are legible, whose rights are enforceable, and who must simply live under an unconstitutional regime until their individual case makes it to the top. For this majority to even invoke a concern for judicial authority here is a sleight of hand. The question isn’t whether courts have too much power. It’s whether they have enough to meet the moment. And this court has answered no.

The court could have taken a narrower path. It could have acknowledged the complexity of nationwide injunctions and offered a principled framework for when such relief is warranted—cases involving structural constitutional violations, sweeping executive action, or harms that by their nature resist fragmentation. It could have said: not often, but sometimes. Instead, it offered no standard, no guidance, no criteria. Just a command: no more.

At last, here’s what today’s ruling means in plain terms: If you are aggrieved by the birthright citizenship order—if the government tells you, your child, or your neighbor that you are not a citizen—you must file your own lawsuit. Hire a lawyer. Survive years of litigation. Win. And even if you do, your relief applies only to you. Not to your sister in the same home. Not to your mother, your friend, or your infant child—unless they were attached to your complaint. Constitutional rights, this court insists, must be vindicated one body at a time until the merits of the case are settled.

Universal injunctions were never a perfect tool. But they were at least an acknowledgment that rights mean nothing if courts cannot enforce them beyond the person who manages to make it to the courthouse steps. Now, even that is gone.

The court did not revoke birthright citizenship. It didn’t have to. By disabling the courts’ ability to halt unlawful policy across the board, it made that revocation harder to challenge, slower to remedy, easier to survive judicial review. A right that can’t be enforced for anyone but the plaintiff is a right that will not survive this era. And a judiciary that calls that humility has already chosen a side.