I Drafted Clarence Thomas’ Birthright Citizenship Dissent. It Was So Bad I Quit: Satire

Rewire News Group has granted the author anonymity because he signed a confidentiality agreement, and also because his law school classmates still think he still works there.

My name is Brad. I’m not going to give my last name. I clerked for Justice Clarence Thomas, and I want to begin by saying it was the honor of my life. I need to say that. The Federalist Society is reading this.

I did not leave because of the quarter-million dollar RV loan that he never paid back. I did not leave because of Justice Thomas’ association with billionaire Harlan Crow—a man who seems to collect Nazi memorabilia the way other people collect stamps, which is to say with enthusiasm and apparent purpose. 

I left because of a citation. One citation I pulled on a Tuesday afternoon that I was not asked to pull, and which has been haunting me ever since.

But first some background.

I applied to clerk for Justice Thomas because I believed originalism was a theory with rules. You start with the Constitution’s text. If the text is unclear, you ask what the words meant to the people who ratified the text—dictionaries, newspapers, floor debates, the Congressional Globe (the official transcript of congressional debates in the 1860s), that sort of thing. If that’s inconclusive, you consult history and tradition. 

I confess I was relieved when I remembered New York State Rifle & Pistol Association Inc. v. Bruen, the big “history and tradition” gun rights case from 2022. Finally, I thought, a clear test. We simply ask what our nation’s history and tradition tell us. That’s how I, just eight months post-graduation, ended up reading 18th century public-carry rules like they contained the meaning of life, just to see if a modern gun law can exist. That’s also how we killed the constitutional rights to abortion in Dobbs. (Great job, that.)

Rules are rules. No matter the outcome—and no matter how much it pissed off the liberal ladies down the hall—the method always decides the case. Not the judge. I really believed that.  

Then I was assigned to edit the draft dissent in Trump v. Barbara.

And that’s when panic started to set in.

The draft dissent argued that the Citizenship Clause doesn’t cover children born here to parents who aren’t permanently “domiciled” in the United States. Fine. I tried to make originalism work for that statement. I pulled the Congressional Globe and found the drafting history of the Civil Rights Act of 1866, the first law to establish citizenship and equal rights under the law. 

The Civil Rights Act of 1866 said people born here are citizens—as long as they weren’t subject to a foreign power, and as long as they weren’t “Indians not taxed,” which was its own whole thing. Then the 14th Amendment made the citizenship rule constitutional so Congress couldn’t repeal it, a court couldn’t overturn it, and a future president couldn’t executive-order it away.

I couldn’t find anything about domicile anywhere in the Civil Rights Act or the 14th Amendment. That’s because nothing is there.

Senator Lyman Trumbull’s first draft of the Civil Rights Act of 1866 covered “all persons of African descent born in the United States.” The next day, Trumbull struck those words and replaced them with “all persons born in the United States, and not subject to any foreign Power.” 

At this point I got excited. I recognized this history about Senator Trumbull’s statement and subsequent revision because the Justice himself had written about it. And since the Trump v. Barbara draft dissent didn’t cite Thomas’ concurrence in Students for Fair Admissions v. Harvard College—the 2023 case where the Court killed affirmative action—I decided to pull the volume to add the citation. 

I really wish I hadn’t done that.

I looked at page six of Thomas’ Students for Fair Admissions concurrence. It said that Trumbull’s revision evidenced an intent to broaden the provision, extending beyond recently freed blacks and incorporating a more general view of equality for all Americans.”

Those were his exact words in 2023. (I thought we weren’t supposed to call them “blacks” anymore but I wasn’t about to bring that up.)

But Thomas’ draft dissent in Trump v. Barbara said the citizenship guarantee “was enacted for freed slaves such as Dred Scott”—the enslaved Black man who sued for his freedom and whom the Supreme Court said could never be a citizen. It was enacted for people with “no other homeland,” according to the draft dissent, not for children born here to “birth tourists” and other parents Thomas deemed insufficiently rooted in the United States.

I tried to hold both sentences in my head at once. “Extending beyond recently freed blacks.” “Enacted for freed slaves such as Dred Scott.” I got a splitting headache. So I made coffee and then I came back. Those sentences were still there. I made more coffee. Still there.

So I tried to write around it.

First attempt: “The 14th Amendment, properly understood, broadened in 2023 and narrowed in 2026.” I deleted it. It was nonsense. There is no constitutional mechanism by which the text of a constitutional amendment changes scope depending on whether the amendment will help Black people or hurt immigrants. 

Second attempt: “The phrase ‘extending beyond’ is best read narrowly.” I reread the sentence. It appeared stubbornly attached to its ordinary meaning. Thomas agreed that extending beyond means exactly that in 2023. But in 2026, he needed it to mean the exact opposite. I could not make his words—or his logic—do that.

Third attempt: “Race disappears from the 14th Amendment when Black Americans need it, and reappears when I need it to block immigrants from becoming citizens.” This was the most accurate assessment of Thomas’ logic, but I knew I couldn’t print it. So I threw my hands up and contemplated walking into the Potomac River fully clothed.

There was also a secondary problem that made me sweat through my Brooks Brothers button-down. The dissent built its citizenship test around what slavery did to Black people: It severed every other tie, leaving nowhere else to go. But that logic requires someone to decide which Black people’s allegiance is sufficiently total and whose connections to another country are too strong.

And because Black people can also be immigrants—Haitian, Nigerian, Jamaican—the dissent creates a framework where someone has to rank Black families by how “American” they are under an amendment explicitly enacted because of what happened to Dred Scott.

That someone wasn’t going to be me. As a basic white man who graduated from Liberty University School of Law eight months ago, nothing in my education prepared me to rank Black families by how thoroughly the United States had destroyed their connection to anywhere else in order to determine which of their children are American enough. 

I tried. Then I stopped. Then I closed the document. I had another headache. 

I resigned the following week. I told chambers it was a family matter, which was technically true, in that I called my mother.

I still believe in originalism. I think. I came to this clerkship because I believed the method was supposed to be a constraint—something that stopped judges from just deciding what they wanted the law to say and then constructing an argument backward. Text. Original public meaning. History and tradition. Follow the steps. Whatever comes out the other end is the law. So that’s what I did. I followed the steps. 

The text made the babies at issue in this case citizens. 

History and tradition spent 150 years making the babies at issue in this case citizens. 

And then there was page six of the Students for Fair Admissions concurrence, which the Justice wrote himself, in 2023, with his own name on it, which also made the babies at issue in this case citizens. 

I ran out of steps. Every single one of them led to the same place, and it was not the place the Justice needed to be, and I’m still not sure if that means originalism failed or if originalism was never doing what I thought it was doing. I’m not even sure those are different questions.

I’m at a firm now doing appellate practice. My mother is proud, and I’ve asked her to stop telling people I write Supreme Court opinions. It’s embarrassing. She has agreed to say instead that I used to.

Brad is a former Supreme Court clerk. He has a podcast about originalism with 40 listeners, seven of whom are his pickleball teammates.

The reality behind the bit

Hey, it’s the real me, Imani Gandy.

Before anyone emails me: Yes, Brad is a conceit. But the jurisprudence animating him is entirely real.

Thomas really did write in his Trump v. Barbara dissent that the Citizenship Clause “was enacted for freed slaves such as Dred Scott”—people with “no other homeland.” And he really did write three years earlier, in Students for Fair Admissions, that Trumbull’s revision to the 1866 Civil RIghts Act broadened the provision “beyond recently freed blacks” to reflect “a more general view of equality for all Americans.”

That matters because Thomas weaponized the Citizenship Clause’s drafting history to argue, in an affirmative action case, that the 14th Amendment is strictly colorblind. Then, the moment an actual citizenship case arrived on the docket, he weaponized that exact same history to say the Clause is race-conscious, narrow, and exclusive.

No.

You don’t get to borrow the Clause’s history when it helps you and ignore it when it doesn’t. You don’t get to use Senator Trumbull to kill affirmative action and then pretend Trumbull didn’t say what he said when birthright citizenship is on the line. 

Besides, the Citizenship Clause and the Equal Protection Clause are in the same amendment. They’re even in the same section. Under Thomas’ reading, Congress wrote a race-conscious citizenship guarantee and then pivoted, mid-breath, into a colorblind equality rule that forbids ever considering race again. Come on, man.

The bottom line is this: The babies at issue in Trump v. Barbara are citizens. If you’re born here and subject to the laws of the United States, you’re a citizen. The 14th Amendment survived this attempt on its life.

And somewhere out there, page six of one Clarence Thomas opinion is arguing with page 56 of another.

He wrote them both.

But only one of them can be right.

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