Justice Jackson’s birthright citizenship opinion includes Black Americans in the story of the nation’s search for equality

AI Summary

Justice Ketanji Brown Jackson issued a significant concurring opinion in the Trump v. Barbara birthright citizenship case, emphasizing the 14th Amendment's promise of equal treatment and highlighting Black Americans' role in the nation's history. Her opinion criticized originalist jurisprudence and expanded the understanding of citizenship beyond the majority ruling.

Supreme Court Associate Justice Ketanji Brown Jackson speaks in Cutler Bay, Fla., on March 6, 2023. Joe Raedle/Getty Images In the annals of Supreme Court decisions, the public likely remembers what justices wrote for the court in famous cases, such as the Brown v. Board of Education ruling that outlawed racial segregation in public schools. Or perhaps the public remembers great dissenting opinions that display foresight and speak across the ages. Justice John Marshall Harlan’s dissent in the 1896 Plessy v. Ferguson case, which legalized racial segregation, is a shining example. But Supreme Court scholars and the public alike seldom pay much attention to concurring opinions, in which a justice expounds on the views of their colleagues in the majority. Some legal experts have denigrated concurring opinions as “the worst form of legal clutter… that are, usually, better left unwritten.” On June 30, 2026, in the Trump v. Barbara ruling, Justice Ketanji Brown Jackson showed how wrong that view can be when she delivered a monumental concurring opinion in the birthright citizenship case. Chief Justice John Roberts wrote the majority opinion, ruling that the 14th Amendment guarantees automatic citizenship to virtually everyone born on U.S. soil. The decision invalidated President Donald Trump’s executive order that sought to deny citizenship to children born to foreign parents who are unlawfully in the United States. Jackson, however, used her concurrence to go far beyond that and offer a new understanding of the origins of the 14th Amendment’s guarantee of birthright citizenship and its promise of equal treatment. She did so while emphasizing the singular contributions of Black Americans to that endeavor. Along the way, Jackson criticized Justice Clarence Thomas and the court’s dominant originalist jurisprudence – centered on interpreting the Constitution based on how it was understood when it was adopted – for distorting the historical record. Jackson has previously signaled that a responsible use of history requires examining all relevant sources instead of cherry-picking among them to make a particular point. As a politics scholar who has written about history and law, I believe that years from now, when Americans look back on Trump v. Barbara, it will be Jackson, not Roberts, whom they remember. No shrinking violet During her brief tenure on the court, Jackson has shown herself to be no shrinking violet. From the start, she has made her voice heard during oral arguments and in her written opinions. As political scientists Jake Truscott and Adam Feldman wrote in December 2022, after her first three months as a justice, Jackson “was by far the most active participant in oral arguments.” Since then, nothing has changed about Jackson’s style on the bench. The Washington Examiner reports that she “took up more than 20% of the Supreme Court’s questioning last term.” Jackson also is not shy about writing dissenting opinions, and the occasional concurrence, whether in combination with others or alone. In both her dissents and concurrences, Thomas, the court’s only other Black member and its leading proponent of originalism, has been one of her main targets. Ketanji Brown Jackson testifies before a Senate Judiciary Committee hearing on pending judicial nominations on April 28, 2021, in Washington. Kevin Lamarque/Pool via AP For example, in her 2023 dissent from the court’s decision to end affirmative action in higher education, Jackson directly criticized Thomas when she wrote that “those who demand that no one think about race … refuse to see, much less solve for, the elephant in the room – the race-linked disparities that continue to impede achievement of our great Nation’s full potential.” Originalism, Jackson-style Jackson has also called herself an originalist. However, she departs from Thomas’ brand of originalism. For Jackson, to understand how any provision of the Constitution was understood requires unearthing sources of constitutional meaning that have been largely ignored by others on the court. That vision was on display in her concurring opinion in the birthright citizenship case. There, Jackson paid particular attention to what Black Americans did in inspiring and crafting the 14th Amendment. This contrasts with the traditional originalist story that highlights white protagonists such as Pennsylvania Rep. Thaddeus Stevens, who introduced the proposal to add the 14th Amendment to the Constitution, or President Andrew Johnson, who resisted the 14h Amendment on the grounds that it infringed on states’ rights. Justice Thomas embraced this sort of vision in Trump v. Barbara. As he tells it, the birth of the 14th Amendment can be traced to the concerns of members of the Reconstruction Congress that the 1866 Civil Rights Act, which extended certain fundamental rights to “all persons born in the United States,” would be repealed or overturned