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Justice Jackson's Birthright Citizenship Comments Were A Total Disaster

Tyler Durden's Photo
by Tyler Durden
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Justice Ketanji Brown Jackson turned Wednesday's Supreme Court birthright citizenship oral arguments into another demonstration of her lack of qualifications for sitting on the high court.

The case centers on President Trump's executive order challenging the automatic grant of citizenship to children born on U.S. soil to non-citizen parents. It was, on paper, one of the most consequential constitutional arguments in decades. For Jackson, it became a showcase of creative — if baffling — jurisprudence.

Speaking to ACLU attorney Cecillia Wang, Jackson offered an extremely bizarre take on allegiance to a nation.

"I was thinking, you know … I, a U.S. citizen, am visiting Japan. And what it means is that, you know, if I steal someone's wallet in Japan, the Japanese authorities can arrest me and prosecute me. It's allegiance, meaning, can they control you as a matter of law?" She continued: "I can also rely on them if my wallet is stolen, to, you know, under Japanese law, go and prosecute the person who has stolen it." Then the kicker: "So there's this relationship based on — even though I'm a temporary traveler, I'm just on vacation in Japan, I'm still locally owing allegiance in that sense. Is that the right way to think about it?"

What Jackson described isn't allegiance in any constitutional, historical, or even pedestrian sense of the word. It's basic jurisdictional law - the notion that when you're in a foreign country, local law applies to you. That has nothing to do with the 14th Amendment's "subject to the jurisdiction thereof" clause, which turns on political allegiance and sovereign obligation, not tourism logistics.

Jackson didn’t help herself when she started quoting an exchange between two senators from the Reconstruction-era debates over the 14th Amendment's citizenship clause without knowing who they were. 

"I'm not sure whether these are senators. I apologize," she said mid-argument, before quoting Sen. Fessenden and Sen. Wade at length. For a case so thoroughly anchored in the congressional record of the 1860s, debates that any competent litigant or jurist in this proceeding would have studied cold, not recognizing the names of the principal architects of the amendment's citizenship language, is a remarkable gap. Their exchange over the citizenship clause is foundational to the very question before the Court. Jackson's uncertainty about whether they were even senators underscored a more troubling deficiency: she appeared unfamiliar with the precise debates that frame the constitutional text she was being asked to interpret.

Yet another example of Jackson asking ridiculous questions was when she pressed Solicitor General D. John Sauer on how the system would work if babies born in the United States weren’t automatically granted citizenship.

"Are you suggesting that when a baby is born, people have to have documents, present documents? Is this happening in the delivery room? How are we determining when or whether a newborn child is a citizen of the United States under your rule?" The question was posed as if the government had proposed fingerprinting maternity wards. It drew mockery online - but it also reflected a genuine gap in rigorous engagement with Sauer's actual legal theory, which turned on parental domicile rather than real-time documentation at birth.

By most accounts, a majority of the Court appeared skeptical of the Trump administration's position. Even some conservative justices grilled Sauer aggressively. But Jackson's contributions to Wednesday's argument were something else — a string of analogies that don't hold, a general lack of understanding of the law, history she couldn't identify, and procedural questions that generated headlines without illuminating the law. For a justice sitting on the nation's highest court in one of its most scrutinized cases in years, it’s an embarrassment.

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