As the Supreme Court handed down a landmark ruling on the last day of its term protecting birthright citizenship and invalidating a signature policy of President Donald Trump's administration, Justice Clarence Thomas took a swipe at the majority in his dissent, stunning legal experts with an argument that would have effectively rewritten 14th Amendment protections out of the Constitution for millions of people.
But Justice Ketanji Brown Jackson went out of her way in her concurrence with Chief Justice John Roberts' majority opinion to demolish Thomas' argument — and in particular, point out that he was talking out of both sides of his mouth on how to interpret constitutional rights.
"I write separately to respond to some of the themes in the principal dissent," wrote Jackson. "Despite his longstanding endorsement of a 'colorblind' Constitution, Justice Thomas now surprisingly suggests that the Citizenship Clause was a race-conscious remedial measure, relating only to 'freed slaves such as Dred Scott,' ... and those who shared with them certain characteristics ... It is for this reason, he says, that 'children who were born in the United States but [to parents] not domiciled here' are not entitled to claim birthright citizenship."
This, noted Georgia trial lawyer and legal analyst Andrew Fleischman in a post to X, is a "pretty good burn here."
"Justice Thomas says that the 14th Amendment does not allow us to treat people differently on the basis of their race to help them (affirmative action, voting rights). But then he says it was also laser-focused on restoring citizenship for black Americans," he wrote.
Ultimately, Jackson's concurrence noted, Thomas is wrong on the latter point anyway.
"That narrow vision of the 14th Amendment bears little relationship to the history of its ratification," she wrote. "Even worse, Justice Thomas's telling elides the entire point of the Second Founding: The Reconstruction Amendments were an anticaste, antisubordination reset for the Nation, not a mere spot treatment for the dark stain of slavery."
The majority opinion by Roberts agrees with this assessment, noted Slate's Mark Joseph Stern, detailing the history that proves Congress in the 1860s understood and affirmed birthright citizenship would apply to the children of immigrants.