Jackson Delivers Scathing Birthright Opinion Aimed at Thomas

Justice Ketanji Brown Jackson took direct aim at a dissent written by Justice Clarence Thomas in dueling opinions on birthright citizenship Tuesday, highlighting the longstanding divide the two Black members of the Supreme Court have over race and the Constitution.

Thomas, who was appointed by President George H. W. Bush and is widely considered to be the Supreme Court’s most conservative justice, has long maintained his belief in a “colorblind” Constitution — an argument that drew sharp criticism from Jackson when the court’s majority struck down race-conscious practices in college admissions in 2023.

Jackson referenced Thomas’ philosophy in her concurring opinion released Tuesday, appearing to underscore the irony after he argued in his dissent that the 14th Amendment’s Citizenship Clause was intended solely to rectify the legacy of slavery.

The court on Tuesday struck down President Donald Trump’s executive order that would have denied citizenship to children born to parents in the U.S. temporarily or illegally, a policy that Thomas viewed favorably in a dissenting opinion. Chief Justice John Roberts wrote for the majority in upholding the court’s long-held interpretation of the 14th Amendment, while Jackson penned a concurring opinion that was largely focused on rebutting Thomas’ arguments.

“Despite his longstanding endorsement of a ‘colorblind’ Constitution, Justice Thomas now surprisingly suggests that the Citizenship Clause was a race-conscious remedial measure, relating only to ‘freed slaves such as Dred Scott,’ … and those who shared with them certain characteristics,” Jackson wrote. “It is for this reason, he says, that ‘children who were born in the United States but [to parents] not domiciled here’ are not entitled to claim birthright citizenship.”

Jackson, who was appointed by President Joe Biden, wrote that Thomas’ “narrow vision” of the amendment “bears little relationship to the history of its ratification.”

“Even worse,” she added, “Justice Thomas’s telling elides the entire point of the Second Founding: The Reconstruction Amendments were an anticaste, antisubordination reset for the Nation, not a mere spot treatment for the dark stain of slavery.”

Jackson noted in her opinion that the 14th Amendment was enacted “with the one pervading purpose of securing equal citizenship for the freed slaves,” but added that the Supreme Court has a history of rulings that “time and again denied Americans that promise.”

To support her point, Jackson listed 11 cases in the footnotes of her opinion, including the 2023 affirmative action decision. She wrote in the footnotes, “I suspect, though, that Justice Thomas and I disagree about when and how that promise has been denied by this Court. My list is long (and sadly only getting longer).”

Jackson further said Thomas approached the 14th Amendment with a “myopic treatment.”

“The Amendment caused a paradigm shift in the trajectory of our Nation,” she wrote. “The teacher who scolds a student for bullying a classmate hopes the student learns the broader lesson of treating everyone with kindness, not just that one kid.”