Principle and Policy in the Birthright Citizenship Case
If you had asked me a year and a half ago what the prospects were for President Trump's executive order limiting birthright citizenship if and when the issue made it to the Supreme Court, I would have said the Court would reject the order either 9-0 or 8-1, with 7-2 being my upper limit on dissents. The two dissenters I would have predicted, obviously, would have been Justices Thomas and Alito. Professor Buchanan, who is, depending on one's view, either more cynical or less naive than I am about the Supreme Court, thought that the Court would likely uphold the order--even though, as he made very very clear in his February 2025 blog post , he believed the argument for doing so extraordinarily weak. But he noted how, with support from motivated legal scholars, off-the-wall ideas can become on the wall (in Professor Jack Balkin's memorable phrasing). I never quite got all the way to Professor Buchanan's view, but my prediction grew closer to his a year ago, after the Supre...