Chief Justice John Roberts has long prided himself on being a judicial minimalist and proceduralist. He wants to preserve the image of the judiciary, and especially the Supreme Court, as an impartial arbiter of cases and controversies.
Very often, when highly politicized cases connected to Trump have reached the court, Roberts has sought ways to defuse the case without looking like the court picked a side with partisan interest. For example, in the Trump v. U.S. (2024) case about presidential immunity, Roberts led the majority to rule in favor of Trump but tried to make the opinion about the executive as such and not Trump specifically.
In the recent Learning Resources v. Trump decision from February, Roberts decided against President Trump’s “liberation day” tariffs on the basis, not of constitutional interpretation, but of statutory interpretation. Roberts narrowed the question to the specific statute in question —the International Emergency Economic Powers Act (IEEPA) of 1977 — and held the president’s tariffs were not explicitly authorized by the statute. Regardless of the rectitude of this decision, it was the simplest way to rule against Trump and answer the narrowest legal question possible in the case.
Similarly, if Roberts can find procedural reasons to not rule directly on the merits of a question but instead push it back to the other branches of government or the lower courts, he is often happy to do so. Consider that the Supreme Court handed down the Trump v. CASA (2025) decision last summer, a case that originated from President Trump’s executive order on birthplace citizenship. However, in that opinion, the Roberts court merely settled the procedural question about whether district court judges can issue universal injunctions as relief — though that rebuke of the lower courts has proven basically worthless since — and the court proceeded to send the case back to the lower courts. It proceeded back up through the lower courts almost immediately, resulting in the Supreme Court’s Trump v. Barbara decision a year later on the actual merits of the case and the question of birthplace citizenship.
Many similar examples abound. The thrust is that Roberts does not want to make it ever appear like the court is taking a substantive stance for some partisan side, but is simply a neutral arbiter applying the “colorblind” law in an objective fashion. Many on the right would easily see through this façade, but Roberts has spent a good part of his career doing everything possible to maintain it.
Birthplace Citizenship
Nevertheless, in the Trump v. Barbara decision on birthplace citizenship, Roberts broke with his own habit to write a maximalist opinion attempting to permanently settle the meaning of the citizenship clause of the Fourteenth Amendment.
Dissenting Justices Clarence Thomas and Neil Gorsuch both pointed out that there were significant “threshold impediments” that should have barred the respondents from bringing their challenge before the Supreme Court. The respondents managed to get the district court to certify a “class that includes ‘all current or future persons’ subject to the Order indefinitely into the future,” but the court did not verify that every member of this essentially global class of individuals had standing to sue for relief. Justice Thomas also argued the respondents had no lawful right of action to bring this suit. Lastly, the respondents wanted the courts to invalidate the president’s executive order as unconstitutional on its face, which means there are no circumstances in which it could apply constitutionally. However, this is a very demanding standard, which arguably could not be met here, since there are at least some individuals for whom the order could apply constitutionally (e.g., children born to alien armies or to foreign spies) even with the majority’s interpretation. Thomas explained, “The Court, without considering any of these individual circumstances, holds unconstitutional the application of the Citizenship Order in all of them.”
For the average non-lawyer readers, the key takeaway is that Roberts chose to ignore all these procedural obstacles and instead move ahead with ruling on the constitutionality of the executive order anyway.
Roberts could have also deferred to Congress, allowing Congress to interpret the meaning of the citizenship clause instead of asserting that to be the prerogative of the judiciary. In fact, Justice Brett Kavanaugh’s short opinion (concurring in the judgment but dissenting in the opinion) argued that Roberts and the majority were wrong to interpret the citizenship clause of the Fourteenth Amendment as they did. Instead, he argued that President Trump’s executive order violated merely a federal statute 8 U.S.C. §1401(a), but did not violate the Fourteenth Amendment’s citizenship clause. In short, he did not think the president could issue such an order in contravention of the statute, but he argued that Congress can and should amend the statute to solve the problem of birthright citizenship in our era of mass migration. A minimalist approach could have seen Roberts following the path of Kavanaugh and siding against Trump on statutory grounds instead of constitutional ones.
Yet this did not happen. Jumping over these hurdles outlined by Thomas, Gorsuch, and Kavanaugh, Chief Justice Roberts led the majority (which included the three most liberal justices on the court) in writing a maximalist opinion. Roberts’ opinion claimed to clarify the substantive meaning of the Fourteenth Amendment’s citizenship clause and held that the clause requires birthplace citizenship for any child born within American territory, even if the parents are illegal aliens, birth tourists, or foreign citizens owing allegiance to another nation. Clearly, Roberts wanted to preclude this question being revisited in future by other branches of government.
This is also evident in the way he whitewashes the history, evidence, and precedents to make it appear as if his understanding of birthplace citizenship is univocally acknowledged in American legal and political history. Thomas and Alito exposed this in their erudite dissents, making a much fuller and more rigorous study of the evidence from the founding era through the Reconstruction era amendments and into the 20th century. Thomas especially shows that the majority simply lies about the history and presents it as simplistic and one-sided. In fact, Thomas cites far more evidence in favor of his opinion (upholding President Trump’s position) than does the majority in support of theirs.
‘Now Let Him Enforce It’
In sum, in Trump v. Barbara, the chief justice let slip his façade. If he wanted to preserve the legitimacy of the judiciary and find a minimalist path, he could have deferred to Congress or even found ways to dismiss the case upon standing grounds or narrow the holding of the decision. Instead, he showed that he was determined to hear this case regardless of any “threshold impediments,” to side against President Trump, and to permanently settle this question of constitutional interpretation.
Given the courts are political actors and that they have weighed in to settle this question in a way detrimental to American sovereignty, the appropriate response is for the other political branches — President Trump and the Republican-led Congress — to push back. They need not acquiesce in this interpretation, and they should do is necessary to reassert American sovereignty. The Supreme Court is not the only department of the federal government that can exercise constitutional interpretation, nor should its word be final, especially in cases where its decisions grossly err. This fight is far from over.
