The recent decision of the United States Supreme Court in Trump v. Barbara affirmed the unconstitutionality of an executive order seeking to end birthright citizenship for children born to undocumented immigrants in the U.S. Chief Justice John Roberts’ opinion, which was joined by Justices Sonia Sotomayor, Elena Kagan, Ketanji Brown Jackson, and Amy Coney Barrett, leaned heavily on the 14th Amendment’s citizenship clause and the precedent established in the late 19th century case of United States v. Wong Kim Ark. However, the outcome could have been substantially different if even one justice had changed their vote.
In a hypothetical scenario where Barbara resulted in a 4-1-4 split decision, the court would have lacked a majority opinion, thus triggering the complex application of the Marks v. United States rule. This precedent dictates that when a majority opinion is absent, the binding opinion on lower courts is determined by the opinion that agrees with the smallest number of other justices on the narrowest grounds. If one more justice had sided with the dissent, the interpretive flexibility of Marks could have left room for political actors to attempt legislative changes based on narrower statutory interpretations, like those suggested by Justice Brett Kavanaugh in his partial dissent.
Kavanaugh’s dissenting opinion acknowledged that while the executive order violated statutory provisions, it did not necessarily breach constitutional grounds. This highlights the importance of his opinion as potential controlling precedent under the Marks rule if it were deemed by lower courts to be the narrowest grounds. Such a decision might have provided leeway for Congress to enact legislation mirroring the executive order under certain statutory interpretations, bypassing constitutional challenges. This concept is explored in detail in discussions on the legislative response using constitutional avoidance principles and effectively exploiting the notion of narrower grounds within Marks-style splits.
As illustrated in past cases like Regents of the University of California v. Bakke, where Justice Powell’s solo opinion was later adopted by the court, a similar path might have unfolded for Barbara. Congress has shown interest in recent years in taking up legislation that might survive judicial scrutiny based on Kavanaugh’s rationale, drawing precedent from his interpretation of the statutory landscape.
Although a majority opinion was secured in Barbara, the case serves as a reminder of the critical importance of each vote on the Supreme Court and the role of nuanced legal reasoning that could potentially alter the legislative and constitutional terrain. For more insights into this intricate legal framework and its implications, the full analysis is available here.