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I often write in Major Questions about Supreme Court rulings I disagree with. Today, in light of last week’s decision in the birthright citizenship case, I’m turning my attention to rulings that come out the “right” way and yet still don’t feel like a win.
To get you in the spirit, here’s a question: How many times in the last decade-plus have you learned of a 5–4 (or 6–3) Supreme Court ruling in which the majority followed long-established precedent, or even — stay with me here — the plain language of the Constitution, and felt not relief but dread? Not “Thank god the Court did its job” but “How could it have been so close?”
That’s how I felt, once again, after the Court’s 5–4 ruling in Trump v. Barbara, which involved an executive order President Trump signed in 2025, on his first day back in office, purporting to deny citizenship to babies born on U.S. soil to noncitizen parents. (On the separate question of whether Trump’s order violated federal law, the Court voted 6–3 that it did; Justice Brett Kavanaugh, who dissented on the constitutional question, joined the majority on that count.)
This is about as direct a constitutional violation as you will find in the wild. Section 1 of the 14th Amendment states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside.” That unequivocal language — “all persons” — was drafted in response to the Supreme Court’s infamous 1857 ruling in the Dred Scott case, which denied that former slaves and their descendants could ever be citizens. For more than a century the Court has interpreted that language broadly, as intended, with a few narrowly defined and widely accepted exceptions, none of which were at issue in the birthright case.
The Court, as expected, ruled against Trump. The New York Times expressed the prevailing mainstream interpretation of that result: “Supreme Court Upholds Birthright Citizenship,” read the big bold letters across the top of the Times’s website. But while that was technically accurate, it, like much mainstream coverage of the Court’s decision, obscured more than it revealed.
What it obscured was the justices’ vote on the question of whether the Constitution means what it plainly says, which was not unanimous as it should have been, but 5–4—as close as it can get.
This is bad both for the Court and for the country. It’s bad for the Court because, as the indispensable SCOTUS observer Steve Vladeck wrote in his newsletter, “unanimity (or near-unanimity) in high-salience cases is the single most powerful signal the Court can send that it is acting institutionally.” It’s bad for the country because of what it portends for the future. As The Atlantic’s Adam Serwer wrote, a 5–4 ruling in a case like Trump v. Barbara “is not a win, it’s a reprieve.”
How could it have been so close?
The answer in this case was that four of the right-wing justices were willing to entertain a novel, convoluted reading of the phrase “subject to the jurisdiction thereof” and to ignore or explain away more than a century and a half of settled law.
Put aside for the moment the naked racism of the anti-birthright movement, which only seems to apply to darker-skinned immigrants (no surprise, given that it has been spearheaded by a president who rode into the White House claiming falsely that his predecessor, the nation’s first Black president, was not a natural-born American citizen). Consider instead the speed with which an untested legal theory was adopted by as many as four justices of the Supreme Court.
This phenomenon has repeated itself so often during the Roberts Era that it has a name: putting “off the wall” arguments “on the wall.” That’s from Jack Balkin, a Yale law professor and one of the country’s leading constitutional scholars, who watched an earlier iteration of the Roberts Court in 2012 come perilously close to striking down the Affordable Care Act’s individual mandate to retain health insurance coverage, the heart of President Barack Obama’s signature health-care law.
To mainstream legal scholars at the time, this was a shock twice over. First, because the individual mandate was the product of conservative think tanks looking for a market-based solution to America’s health-care crisis; and second, because the constitutional argument in favor of the mandate was based on well-established precedent while the argument against it was, to use Balkin’s legal term of art, “simply crazy.”
In Balkin’s telling, conservative activists had taken a constitutional claim that was “off the wall” and, in conjunction with the Republican party and right-wing media, managed to put it “on the wall.” Off-the-wall arguments are entertained by fringe thinkers, if at all. On-the-wall arguments are “at least plausible,” Balkin wrote in The Atlantic in 2012, and thus could become law if enough justices can be persuaded to adopt them.
In the case of the individual mandate, four justices were persuaded to sign on to an off-the-wall legal theory — not quite enough to strike down the mandate, but enough to make the Court’s decision upholding it feel far less secure than it otherwise might have.
So how do claims move from off the wall to on the wall? As Balkin explained, intellectuals promote controversial or counterintuitive (if not indefensible) arguments, which are then amplified and normalized by committed social movements. In the end, it comes down to party politics. “The single most important factor in making the mandate opponents’ constitutional claims plausible was strong support by the Republican Party, including its politicians, its affiliated lawyers, and its affiliated media,” he wrote.
Such shifts in legal interpretation are so important, of course, because the Supreme Court defines the law for the entire federal judiciary. When even a few justices sign on to previously fringe ideas, it sends a message about where the Court is headed in the future, and what sorts of rulings we might get if just one or two seats change hands.
As soon as the birthright citizenship ruling came down last week, I got Affordable Care Act vibes, so I called Balkin up and asked him what he thought. He was not surprised.
“Legal argument is shaped by what I call nodes of power,” Balkin told me. “Whoever occupies the nodes of power in the system will have an overwhelming say in what moves from off the wall to on the wall.” He pointed out that six justices on the current Court have been appointed by Republican presidents. “If you look for nodes of power, gee, it’s not hard to see how this moves from off the wall to on the wall.”
Balkin flagged other recent rulings that fit the pattern, including the Court’s 2023 decision in Moore v. Harper, which rejected an idea called the independent state legislature theory. On the surface, this was as it should be, given that the theory was so bereft of support that its advocates found themselves citing phony historical documents to make their case. And yet the vote in Moore v. Harper was not unanimous; it was 6–3, with Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch dissenting. In a case labelled “the most important case for American democracy” ever by a prominent conservative former appellate judge, one-third of the Court was happy to sign on to a notion that NYU Law professor Melissa Murray rightly described as less theory than “fan fiction.”
I said at the start that I wanted to focus on cases that came out the “right” way, so as to arm ourselves against irrational exuberance (RIP Alan Greenspan), but Balkin reminded me that there are more than a few cases where off-the-wall arguments were adopted by a majority of the Court, resulting in a ruling that was awful in both process and substance. Honorable mention in this category goes to one of the most abhorrent of those cases: Trump v. United States from 2024, in which the six right-wing justices delivered among the most lawless, indefensible rulings in the Court’s history, a gift of near-total criminal immunity to President Trump — and all other presidents, of course, but what other president has ever been in need of criminal immunity besides, say, Richard Nixon? Nixon, you may recall, not only lost his own 1974 Supreme Court appeal but did so unanimously. That Court, I would note, was staffed with justices far less beholden to their partisan preferences than today’s justices appear to be.
