Supreme Court Justice Ketanji Brown Jackson on Tuesday accused Justice Clarence Thomas of echoing "one of Dred Scott’s core tenets" in his opposition to the court’s decision upholding birthright citizenship. Jackson's concurrence with the majority opinion in Trump v. Barbara asserted that the 14th Amendment's citizenship clause was intended to apply to all individuals born in the United States, including the children of undocumented immigrants.
Jackson argued that Thomas's position, which posits that the amendment was ratified specifically to grant citizenship to formerly enslaved people after the Civil War, ignores the broader historical intent. She stated that the government and Thomas propose a return to the core tenet of the Dred Scott decision, where being born on American soil was insufficient for citizenship for certain individuals.
The Dred Scott v. Sandford decision in 1857 held that people of African descent were not citizens and were not intended to be included under the rights and privileges secured by the Constitution.
Justice Thomas, however, contended that Jackson's understanding of the 14th Amendment's historical context was inaccurate. He wrote that the Reconstruction Congresses overruled Dred Scott with the Civil Rights Act of 1866 and the Citizenship Clause of the Fourteenth Amendment, both of which guaranteed citizenship to persons born and domiciled in the United States regardless of race. He emphasized that neither guaranteed citizenship to persons not domiciled in the U.S.
Thomas differentiated between Black Americans and foreigners residing in the country, stating that Black individuals were entitled to citizenship because they were Americans with no other homeland. He argued that children of foreign temporary visitors remain tied to their home countries and are not fully "subject to the jurisdiction" of the United States in the constitutional sense, thus not qualifying for birthright citizenship.
Jackson called this reasoning "myopic," pointing out that Thomas's interpretation, despite his past endorsement of a "colorblind" Constitution, now suggests the Citizenship Clause was race-conscious and related only to freed slaves. She countered that this narrow vision of the Fourteenth Amendment does not align with its ratification history and overlooks the broader purpose of the Reconstruction Amendments as an "anticaste, antisubordination reset for the Nation."