President Donald Trump pauses after speaking in the East Room of the White House, Thursday, July 16, 2026, in Washington. (Saul Loeb/Pool via AP) President Trump has declared that he will seek reconsideration of the Supreme Court’s ruling in Trump v. Barbara, which upheld birthright citizenship for nearly every child born in the U.S. That would be a risky gambit. If the Supreme Court were actually to revisit the birthright case, Trump would be far more likely to lose votes than gain them.
Never one to accept defeat graciously, Trump called the court’s decision “absolutely insane” and a “miscarriage of justice that will destroy America,” even though it simply reaffirmed a precedent that has been in place for 128 years. He falsely added that “Signs and Billboards are being put up all over our Southern Border, and Mexico, advertising BIRTHRIGHT CITIZENSHIP” for $4,000.
Despite the faux crisis, chances that the Supreme Court would reconsider its decision are slim. The court last granted such a petition in 1965 and has not reversed a decision since 1956.
The five-justice majority opinion, holding his executive order unconstitutional, is rock solid. The case turned on the wording of the 14th Amendment, ratified in 1868, which states that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”
As Chief Justice John Roberts plainly put it, jurisdiction means “the power of the United States to govern those within its territory,” and the 14th Amendment thus “guarantees citizenship to children born in the United States of parents unlawfully or temporarily present in the country.”
The other side was seriously fractured. Only two justices — Clarence Thomas, who wrote the principal dissent, and Samuel Alito — completely bought Trump’s convoluted argument that birthright citizenship extends only to the children of legally “domiciled” parents. Domicile, however, is not mentioned in the 14th Amendment.
Justices Neil Gorsuch and Brett Kavanaugh, who took more nuanced positions, could be in play if the court were to grant a rehearing.
Gorsuch is the likeliest defector from Trump’s side. In a separate opinion, he accepted the relevance of domicile to jurisdiction, but he fully applied it only to temporary visa holders, which would disqualify only the children of so-called birth tourists, a small fraction compared to the children of unlawful entrants.
Gorsuch opined that 14th Amendment citizenship, even under a domicile test, might still apply to the children of unlawful entrants who “have long chosen to make this nation their permanent home.” After all, he observed, “If those parents are not domiciled here, then where are they domiciled?”
While Gorsuch did not elaborate on his “permanent home” concept, a rehearing would allow advocates of birthright citizenship to make a compelling case for applying it to most, if not all, children of settled migrants, without regard to legal status. So although Trump has Gorsuch’s vote for now, he could lose it on rehearing.
Kavanaugh issued a mixed opinion in the case, “concurring in the judgment and dissenting in part.” He agreed with Thomas and Alito on the underlying constitutionality of Trump’s executive order, but not on the domicile argument.
Instead, Kavanaugh reasoned that “new circumstances,” such as large-scale illegal immigration and the advent of air travel, “unanticipated” by the framers of the 14th Amendment, could justify new exceptions to 14th Amendment citizenship.
This is a significant departure from the court’s approach in recent gun control cases, discounting the relevance of changed circumstances to the Second Amendment.
In New York State Rifle and Pistol Association, Inc. v. Bruen, written by Thomas and joined by Kavanaugh, the conservative supermajority held that gun control laws are presumptively unconstitutional unless, following “historical inquiry,” they map onto a “proper analogue” or “relevantly similar” regulation in an era close to ratification.
In contrast, Kavanaugh’s birthright opinion argues that Trump identified new exclusions from 14th Amendment citizenship for “children born to foreign citizens unlawfully or temporarily in the country.”
His historical inquiry, however, is negligeable compared to the gun control cases. It comprises one sentence, in which he unconvincingly compares Trump’s desired exclusions to the historical exceptions recognized by the Supreme Court in 1898: the children of diplomats, foreign invaders and certain tribal Indians. (Native Americans were all later made citizens by statute in 1940.)
Kavanaugh already voted with the majority against Trump’s restrictions on birthright citizenship, based only on the 1940 Nationality Act.
Given the tenuous grounding of his constitutional argument and its potentially significant implications for future gun control cases, it might be possible to detach Kavanaugh from his conservative colleagues on the 14th Amendment issue as well, if his views are rigorously interrogated at a rehearing.
Trump has been notoriously successful at finding lawyers who will bring marginal or outlandish cases on his behalf. Maybe not this time. Filing a petition for rehearing in the Supreme Court would be a fool’s errand. Obtaining a rehearing could turn a potential 5-4 cliffhanger into an outright 7-2 rout.
Steven Lubet is the Williams Memorial Professor Emeritus at the Northwestern University Pritzker School of Law.
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