Live Updates: Supreme Court Releases Decision in Birthright Citizenship Case
In August 1895, a young cook named Wong Kim Ark was about to disembark from the S.S. Coptic after a long journey home to San Francisco from China, when U.S. customs officials denied him re-entry.
He was not a U.S. citizen, they said. Never mind that Mr. Wong had been born in San Francisco's Chinatown, not far from the port where he was now being held. The 14th Amendment's provision for automatic citizenship for all people born on U.S. soil did not apply to him, officials later argued, because he and his parents were not 'subject to the jurisdiction' of the United States at the time he was born.
Rather than back down, Mr. Wong took his case to the courts — and won.
In Mr. Wong's case, the Supreme Court affirmed in 1898 the constitutional guarantee of automatic citizenship for nearly all children born in the United States, a right that has deep roots in common law. That expansive understanding of birthright citizenship has been the law of the land since.
The case decided by the Supreme Court was sparked by President Trump's effort to roll back the Wong Kim Ark ruling as part of its crackdown on immigration.
On his first day back in office, Mr. Trump signed an executive order declaring that the government would stop treating U.S.-born children of parents who are undocumented or are in the country temporarily as U.S. citizens.
The Trump administration's view was based on a reinterpretation of the 1898 decision, drawing on ideas from a small group of legal scholars like John Eastman, a lawyer known for drafting a plan to block congressional certification of the 2020 presidential election.
Mr. Wong's case arose during a similar moment of heightened national anxiety around immigration. His parents were part of a wave of Chinese laborers who flocked to the United States starting in the mid-1800s in search of economic opportunities. Mr. Wong's father ran a grocery store in San Francisco's Chinatown neighborhood, and in an apartment above that store, his son Kim Ark was born in 1870.
The growing numbers of Chinese workers on the West Coast soon gave rise to economic competition and virulent racism. Vigilante mobs regularly terrorized and at times even lynched these immigrants, who were often portrayed as unassimilable, inferior and disease-ridden.
Federal laws reflected that bias as well, like the Chinese Exclusion Act of 1882, which barred most Chinese people from entering the country and banned them all from becoming naturalized citizens.
Mr. Wong became a test case pitting the Chinese Exclusion Act against the 14th Amendment, which was adopted in 1868, two years before his birth. It states that '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.'
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Black voters, after all, are United States citizens who have as much of a right to choose their leaders as anyone else. So, if they choose to be represented by a white Republican in a free and fair election, that's their choice and the courts should honor it. Because Gingles only kicks in when an electorate's racial demographics closely match its partisan voting patterns, it places some practical limits on both partisan and racial gerrymandering. In Milligan, for example, Alabama was not able to draw maps that maximized Republican voting power because doing so required the state to dilute Black voting power. So, even though Rucho prevents lawsuits that challenge partisan gerrymandering directly, Gingles sometimes allows suits which target it indirectly by alleging that a partisan gerrymander is also an impermissible racial gerrymander. But now the Court is signaling that it is likely to overrule Gingles and abolish suits alleging that racial gerrymanders violate the Voting Rights Act altogether. So what's the deal with the Court's new order in Callais? The Callais case is virtually identical to Milligan — indeed, the cases are so similar that Louisiana said in a brief to the justices that Callais 'presents the same question' as the Alabama redistricting case. Before the Callais case reached the justices, a lower court determined that Louisiana's congressional maps violate Gingles, and ordered the state to draw an additional Black-majority district. Nevertheless, when the Supreme Court heard oral arguments in Callais last March, all six of the Republican justices appeared to disagree with this lower court's decision — although the lower court's decision merely applied the same legal rules that the Supreme Court applied two years earlier in Milligan. Then, at the end of June, the Court issued a brief order announcing that it would hold an unusual second oral argument in Callais, and that it would seek additional briefing from the parties in this case. On Friday, the Court issued a new order laying out what these parties should address in those briefs. Those briefs should examine whether the lower court order requiring Louisiana to draw an additional Black-majority district 'violates the Fourteenth or Fifteenth Amendments to the U.S. Constitution.' The justices, in other words, want briefing on whether Gingles — and the Voting Rights Act's safeguards against racial gerrymandering more broadly — are unconstitutional. This suggestion that the Voting Rights Act may be unconstitutional — or, at least, that it violates the Republican justices' vision of the Constitution — should not surprise anyone who has followed the Court's voting rights cases. In Shelby County v. Holder (2013), the Republican justices neutralized a different provision of the Voting Rights Act, which required states with a history of racist election practices to 'preclear' new election laws with federal officials before they take effect. The Court's Republican majority labeled this provision 'strong medicine' that could be justified to combat the kind of widespread racial voting discrimination that existed during Jim Crow. But they argued that the United States was not racist enough in 2013 to justify letting preclearance remain in place. 'There is no denying,' Roberts wrote for the Court in Shelby County, 'that the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions.' Although Kavanaugh joined nearly all of the majority opinion in Milligan, he also wrote a separate opinion indicating that he wanted to extend Shelby County to gerrymandering cases in a future ruling. 'Even if Congress in 1982 could constitutionally authorize race-based redistricting under [the Voting Rights Act] for some period of time,' Kavanaugh wrote, 'the authority to conduct race-based redistricting cannot extend indefinitely into the future.' Gingles also suggests that Voting Rights Act suits challenging racial gerrymanders should eventually cease to exist. If the electorate ceases to be racially polarized — something that appears to be slowly happening — then Gingles plaintiffs will no longer be able to win cases, and the federal judiciary's role in redistricting will diminish. But Kavanaugh seems to be impatient to end these suits while many states remain racially polarized. Read in the context of Kavanaugh's Milligan opinion, in other words, the new Callais order suggests that a majority of the justices have decided the Voting Rights Act's safeguards against racial gerrymandering have reached their expiration date, and they are looking for arguments to justify striking them down. It now looks like Milligan was Gingles's last gasp. The Republican justices remain hostile both to the Voting Rights Act and toward gerrymandering suits more broadly. And they appear very likely to use Callais to remove one of the few remaining safeguards against gerrymanders.
