Chief Justice John Roberts and Justice Amy Coney Barrett deserve high praise for the pivotal role they played at the end of the just-concluded term in two key cases.
One is Trump v. Barbara, the monumental decision confirming that the equal protection clause of the 14th Amendment guarantees birthright citizenship. Roberts and Barrett were joined by the court’s three liberals to make a bare five-member majority for the chief justice’s opinion. The other four justices all rejected the court’s constitutional ruling, including Justice Brett Kavanaugh, who accepted that a statute conferred citizenship on virtually all children born in the United States (excluding only the children of foreign diplomats, or others in even rarer instances where U.S. law does not apply on U.S. soil) but who also concluded that the Constitution gives Congress the authority to narrow the scope of U.S. citizenship by virtue of birth in the U.S.
The other of these two cases is Watson v. Republican National Committee, which held that the laws Congress has enacted specifying Election Day for presidential and congressional elections permit states to count mailed ballots that arrive at local election offices after Election Day as long as they were postmarked by that date. Again, the liberals joined Roberts and Barrett for a five-justice majority opinion – this time written by Barrett – and the four other justices dissented. Those four would have forced states to change decades-old practices regarding the receipt of mailed ballots, despite Congress having updated the applicable federal laws based on an acceptance of those practices.
Roberts and Barrett merit commendation in these two cases because they acted with judicial integrity, doing what judges are supposed to do: endeavoring to determine as best as they can what the law objectively requires of them regardless of their personal preferences. It’s not just that they agreed with the liberals that’s praiseworthy; that is not at all the point. Sometimes what the law objectively requires accords with the policy preferences of conservatives, and then it is liberal judges who are obligated to follow the law despite their personal opposition to it. In these two cases, however, it so happened that the law corresponded to what liberals wanted, and consequently it became the duty of conservative judges to accept the dictates of the liberal law. (Arguably, a case from this past term in which the three liberal justices should have recognized that the law contradicted their policy preferences was Mullin v. Al Otro Lado, which involved a statute that explicitly applies to an asylum seeker who “arrives in” the U.S. but which the liberal justices would have extended to asylum seekers appearing at U.S. borders but blocked from entry into the U.S. As much as sensible and humane asylum policy may have favored the liberal dissenters in that case – the opposite position incentivizes illegal immigration – the literal text of the law favored the conservative majority, who required Congress to amend the statute if it wants to liberalize the nation’s asylum policy.)
In Barbara, Roberts masterfully explains why the only possible conclusion is that the first sentence of the 14th Amendment grants citizenship to children born on U.S. soil even if their parents are here temporarily or unlawfully. He starts with English law before the American Revolution, which made anyone born in the British Empire subjects of the British monarch. He shows that after independence all the states retained the idea that citizenship depends on location of birth, converting this status from duty to the Crown to the right of membership in the self-governing polity. “Citizenship, then as now,” Roberts writes, “was the right to have rights—to freely participate in our political community.” Slavery in the South proved the sole exception to this rule, and Dred Scott constitutionalized the South’s position on this issue for the entire nation. Thus, the 14th Amendment’s first sentence – “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside” – must be understood as repudiating Dred Scott and reestablishing the principle that anyone born on U.S. soil to parents subject to U.S. law (and thus not foreign diplomats or the like) is automatically a U.S. citizen.
The four dissenters abandon this straightforward and well-settled understanding of birthright citizenship conferred by the 14th Amendment, arguing instead that the constitutional right of citizenship by being born in the U.S. is limited to the children of parents “domiciled” in the U.S. But as Roberts points out, the text of the 14th Amendment doesn’t use the term “domicile” when it easily could have, and the more natural meaning of the phrase “subject to the jurisdiction thereof” is simply the limited qualification that the laws of the United States are enforceable against the new-born child’s parents, which they are unless the child’s parents are foreign diplomats or foreign soldiers (and accompanying consorts) who have managed to take military control over a portion of U.S. territory – or, in an exception no longer applicable, are members of a Native American tribe living on tribal lands subject to the tribe’s jurisdiction as a foreign (albeit dependent) nation. The effort to read into the text of the Constitution the term “domicile,” which isn’t there, is an example of judges improperly distorting the words of the Constitution to fit their own personal policy preferences. As Roberts proclaims, “[t]here is scant evidence for this dramatically revisionist view.”
To be clear, I don’t wish to dispute the dissenters’ view of immigration policy. It is reasonable to believe that citizenship shouldn’t be conferred automatically in situations of so-called “birth tourism” – or to children of immigrants in this country unlawfully. But that policy position requires a constitutional amendment, just as does the desire to replace the Electoral College with a national popular vote for president. Sometimes the text of the Constitution stands in the way of what might be a sensible policy position.
The same point applies to Watson, although that case involved statutory rather than constitutional interpretation. The Republican Party there argued the congressional specification of Election Day for federal offices as “the Tuesday next after the first Monday in November“ requires that mailed ballots arrive at local election offices by that date and thus do not permit states to count ballots arriving later as long as they are postmarked by that date. In rejecting this argument, Barrett carefully canvassed the history of congressional legislation concerning the specification of Election Day and its relation to absentee voting. What has to happen by Election Day, according to the applicable federal statutes, is that the voters must make their choice by marking and transmitting their ballots. She observed that the federal Uniformed and Overseas Citizens Absentee Voting Act, enacted in 1986, permitted states to set the deadline for when cast absentee ballots must be returned to local election officials. Indeed, UOCAVA explicitly states that military ballots must be delivered to “appropriate election officials” “not later than the date by which an absentee ballot must be received in order to be counted in the election” – a provision which, as Barrett noted, “would make little sense” if Congress had “established a nationwide ballot-receipt deadline” of Election Day.
Barrett also astutely explained that the Electoral Count Reform Act, adopted in 2022 after the insurrection at the Capitol during the counting of electoral votes in the 2020 presidential election, redefines Election Day to permit, in emergency circumstances, the extension of voting to one or more extra days. This change was made with Congress knowing that many states permitted mailed ballots to be received after Election Day as long as they were cast by that date. Thus, Barrett concluded that ECRA confirmed the longstanding view that “[t]he electorate’s choice is made when voting is complete, not when ballots are received.”
Barrett convincingly demolishes the dissent’s efforts to evade the operative provisions of federal law. The dissent tries to rely on 19th century history, observing in particular that when absentee voting was introduced during the Civil War military ballots were required to arrive at a soldier’s home precinct by Election Day even though that might be logistically difficult. If states could have been more lenient with the deadline for receiving a soldier’s absentee ballot, they would have – Justice Samuel Alito argued for the four dissenters – and so the fact that they were strict with this deadline indicates their belief that federal law specifying Election Day prevented their leniency. Even assuming the accuracy of this Civil War point, Barrett demonstrates its irrelevance because Congress repeatedly amended its Election Day statutes in the two subsequent centuries, after states had already liberalized their rules regarding the receipt of absentee ballots. And the four dissenters simply had no answer for what UOCAVA or ECRA provide.
Ultimately, all the dissent has going for it is policy. Indeed, it is a very strong policy argument: it would be much better for voter confidence in the result of elections if all ballots could be counted quickly after the polls close on Election Day. Just recently, we saw how disconcerting it was that California took so long to count ballots in its gubernatorial primary and the Los Angeles mayoral race. But that compelling policy point is utterly irrelevant to the judicial obligation to enforce the law. “As we have said time and again,” Barrett chided the four dissenters, “policy arguments are properly directed to legislatures, not courts.”
Given the judicial integrity that Roberts and Barrett displayed in Barbara and Watson, it is disconcerting that they deviated from this rectitude in Louisiana v. Callais, the case that obliterated the protection that the Voting Rights Act was supposed to provide against unequal electoral power for minority voters. In Callais, Roberts and Barrett joined their four more conservative colleagues over the dissent of the three liberals. The majority opinion in Callais, written by Alito, was based solely on policy – just as were Alito’s dissents in Barbara and Watson – and had nothing to do with the operative constitutional text.
Roberts and Barrett undoubtedly thought that they were doing law rather than policy in Callais. But they were not. The basis for the court’s decision in Callais was the court’s insistence on enforcing its conception of a “colorblind Constitution” – as the court confirmed when describing Callais in its follow-up ruling in the Alabama case Allen v. Milligan. The concept of a colorblind Constitution also motivated the court’s decision in Students for Fair Admissions v. Harvard, the 2023 case that invalidated affirmative action by universities. The Callais majority repeatedly cited SFFA for the proposition that the Constitution forbids “race to play any part in government decisionmaking.” Whatever validity this idea of constitutional colorblindness has in the context of college admissions, however, there is no warrant for it whatsoever in the context of legislative districting.
The constitutional text that the court relied upon in SFFA to ban affirmative action is the equal protection clause of the 14th Amendment, which provides that “[n]o state shall … deny any person within its jurisdiction equal protection of the laws.” It is debatable whether the original public meaning of these words disallows universities to consider race as a positive factor when making admissions decisions. But there can be no debate that the original public meaning of these words imposes no constraints on the legislative consideration of race in the context of laws concerning elections.
To understand this, let’s review some points I made in a previous SCOTUSblog column. We know that the original public meaning of the equal protection clause had nothing to do with elections because it guarantees “equal protection of the laws” to every “person” – male or female – and there was absolutely no understanding at the time that these words guaranteed equal voting rights to women. The 19th Amendment, a half-century later, was necessary for that, as everyone understood.
If any further proof were necessary that the equal protection clause did not prevent states from considering race when enacting laws on voting and elections, just look at section 2 of the same 14th Amendment that contains the equal protection clause. That section specifically permits states to deny equal voting rights on the basis of race, the only consequence being that states will lose seats in the federal House of Representatives if they choose to do so. It was well understood by everyone at the time that nothing in the 14th Amendment barred states from discriminating on the basis of race with respect to voting.
The 15th Amendment, on the other hand, states that “[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race.” So does the 15th Amendment then guarantee that the government must be colorblind when considering any law concerning elections? No. Its words do not say that the government must not make race a factor when it decides where to set the boundaries of legislative districts. It is indeed arguable that these words do not have any application to redistricting at all and instead apply only to regulation of casting and counting votes. But even if the original public meaning of these words does constrain a state’s districting decision, it does so only to the extent that those decisions “abridge” the right to vote by causing an inequality in the right to vote “on account of race.” In other words, the only way a state’s redistricting could cause a 15th Amendment violation would be if that redistricting resulted in unequal voting power because of race.
But what the court’s decision in Callais does is to eviscerate the Voting Rights Act because of an insistence that there can be no consideration of race in redistricting even when that consideration is to assure equality of electoral opportunity for voters of different races. That insistence, it seems to me, comes solely from the policy preferences of the justices in the Callais majority, including Roberts and Barrett. It in no way comes from the text of the 14th or 15th Amendments, or the original public meaning of those texts.
Thus, the sad truth is that in Callais Roberts and Barrett failed to abide by the standard of judicial integrity they upheld in Barbara and Watson. They let their personal policy preferences blind them to what the law required in Callais.
This mistake is no small matter: it denies Congress the power to legislate electoral equality for all voters regardless of race, a power Congress was originally meant to have with the adoption of the 15th Amendment. The tragedy of Callais is not merely that Roberts and Barrett, along with the rest of the majority, substituted their policy preferences for what the Constitution – specifically, the 15th Amendment – requires; instead, the tragedy is that their policy preferences caused them to contradict the very purpose of the 15th Amendment and its empowerment of Congress to achieve that purpose and rectify racial injustice in voting laws.
So, while I applaud Roberts and Barrett for what they did as judges of integrity in Barbara and Watson, I cannot overlook their opposite behavior in Callais.
