Opinion | What Americans—Especially Jews—Should Take Away from the Supreme Court’s Immigration Rulings

Perhaps the place for readers of Moment to begin to sort out the three recent Supreme Court rulings on immigration and citizenship is page 29 of Justice Sonia Sotomayor’s dissent in the case on asylum seekers. Sotomayor notes that the modern asylum system in the United States has its roots in the international reckoning with World War II and the Holocaust.

She recounts the emblematic story of the MS St. Louis, the ship carrying more than 900 Jewish refugees seeking to escape persecution in Nazi Germany. In 1939, the St. Louis sailed from Hamburg, first to Cuba and then to Miami, but was turned away from both places before receiving a similar reception in Canada and returning to Europe. More than 250 of its passengers eventually died during the Holocaust, most murdered in Auschwitz and Sobibór.

The woeful voyage of the St. Louis and related travesties inspired decades of international treaty-making and national legislating that, in the United States, culminated in the assembly of well-intentioned, if highly imperfect, asylum procedures. This system, in theory, allows foreigners fleeing persecution based on race, religion, nationality, membership in a particular social group or political opinion to find shelter and stability and, over time, attain U.S. citizenship.

President Donald Trump’s attempt to destroy the generous spirit motivating the availability of asylum and other aspects of the U.S. immigration process is the theme connecting a trio of Supreme Court rulings, two of which resulted in victories for the administration, even as the high court declined in a third case to undermine the Constitution’s explicit guarantee of citizenship to all who are born in the United States. 

Justice Sotomayor’s allusion to the St. Louis is a reminder that Jewish Americans, because of our history of immigration and ostracization, ought to be especially concerned about the meaning and practical implications of this burst of judicial activity.

First, the good news of the birthright citizenship case, Trump v. Barbara, decided on June 30, which preserved the status quo granting citizenship to children born in the United States to non-citizen parents (with exceptions for some foreign diplomats). In an opinion written by Chief Justice John Roberts and joined by Justice Amy Coney Barrett and the court’s three liberal justices, Sotomayor, Elena Kagan and Ketanji Brown Jackson, the majority ruled that the Constitution’s 14th Amendment means just what it says on this topic: “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.”

Three conservative justices—Clarence Thomas, Samuel Alito and Neil Gorsuch—interpreted that seemingly expansive language as applying only to people emancipated from 19th-century slavery. Justice Brett Kavanaugh agreed with the dissenters’ implausibly narrow view of the 14th Amendment but said that a 1940 statute provided for birthright citizenship—thus producing a 6-3 vote on the bottom line preservation of rights for U.S.-born children whose parents have only temporary legal status or even lack legal status. (Under Kavanaugh’s approach, Congress could repeal that statute, meaning that the constitutional protection of birthright citizenship turns on the narrowest 5-4 margin.)

The practical and heartening effect of Trump v. Barbara is to blunt a major aspect of the president’s anti-immigrant agenda. It invalidates an executive order issued on January 20, 2025—Trump’s first day in office—intended to lay the groundwork for deporting hundreds of thousands, if not millions, of U.S.-born Americans previously thought to be citizens. Trump’s ambition in this regard is nothing short of radical and would have led to the persecution and displacement of a vast number of productive, taxpaying Americans. 

In his dissent, Justice Thomas echoed the administration’s misleading focus on “birth tourists”: women of sufficient means to travel to this country to deliver children here and then return to their home countries. This phenomenon is real but relatively rare. One serious attempt to estimate its frequency produced an estimate of 2,000 incidents of birth tourism per year. The far more common scenario, by orders of magnitude, is that of immigrants who arrive in the United States., have children who automatically become citizens, and then dig in to take advantage of the opportunity for better lives that inspired their migration in the first place—not unlike my forebears and those of so many others.

Temporary Protected Status    

The other two results, unfortunately, will do great human damage. One of the implications of Mullin v. Doe, decided on June 25, is that a great number of the health aides so many Americans and their elderly parents rely on may soon face deportation, along with large portions of the populations of hard-working residents in places like Miami and Springfield, OH. By a 6-3 vote, with the three liberals in dissent, the high court said the president has nearly unchecked authority to remove “temporary protected status” (TPS) granted to immigrants from countries suffering from political upheaval or natural disaster. The Trump administration’s main target in seeking to roll back TPS has been 350,000 Haitians who lack permanent status but don’t want to return to an island nation disrupted by political violence and abject poverty. These are people who, having had provisional legal status until now, are for the most part gainfully employed. Their disappearance will be painfully felt across the economy, from health care aides to office cleaning crews to corner stores in downtowns their presence has revitalized.

Mullin v. Doe also immediately affects thousands of Syrian immigrants seeking to stay in the United States. The total universe of TPS beneficiaries at risk of losing their protected status could total 1.3 million people from 17 countries. The administration’s goal is clear, as Trump adviser Stephen Miller emphasized in his comments on the ruling: “If you no longer have status in this country,” Miller said, “you should be deported.”

Part of the TPS dispute concerned procedure. Immigrant advocates—and the dissenting justices—argued that in deciding to remove TPS, the Department of Homeland Security failed to engage in statutorily required consultation with other federal agencies about whether conditions in Haiti and Syria would endanger people forced to return to those countries. The majority, in effect, concluded that the judiciary lacks authority to second-guess the executive branch on such determinations, however perfunctory the decision-making process may have been. 

Another part of the dispute related to whether President Trump’s repeated derogatory statements about Haitians revealed a constitutionally impermissible racist motivation for removing that group’s TPS in particular. Writing for the majority, Justice Alito waved off the president’s repugnant, racially inflected comments as not necessarily motivated by bigotry. This denial of patent reality strikes me as evidence of the corrosive cumulative effect of Trump’s blurring of fact and fiction, his style of government-by-delusion, which is infecting everything from U.S. foreign policy in Iran and Ukraine to oversight of vaccination and scientific research to brutality toward immigrants.

In his majority opinion, Alito couldn’t bring himself to specify Trump’s bigoted statements. In her dissent, Justice Kagan filled the silence. Here is her summary of Trump’s litany, with citations omitted:

Haitians are “eating the dogs…They’re eating the cats. They’re eating—they’re eating the pets of the people that live [in Springfield, OH].” And: Haitians are also eating “other things too that they’re not supposed to be.” And: Haitians in the United States “probably have AIDS.” And: Haiti is a “shithole country,” which is “filthy, dirty, [and] disgusting.” And: Haitian immigration is “like a death wish for our country.” And: Haitians, along with some others, are “poisoning the blood” of our country. And: “Why is it we only take people from shithole countries” like “Haiti [and] Somalia”? “Why cannot we have some people from Norway [and] Sweden?”

Asylum

The asylum case, Mullin v. Al Otro Lado, ought to strike a particularly ominous chord for Jewish Americans. Also decided on June 25, it turned on a disagreement over the meaning of the term “arrives in.” By statute, an immigrant may apply for asylum when she “arrives in” the U.S. and presents herself to the appropriate authorities. The six-member conservative majority, in another opinion written by Alito, embraced the administration’s view that officials may thwart the asylum process by physically blocking an immigrant from crossing the border.

In her dissent, Justice Sotomayor underscored what’s at stake: Rather than seeking entry at legal ports and land crossings, more immigrants now will try to sneak into the United States, often under dangerous circumstances. Some will be deterred, others won’t. More people will die, both at the border and back in the countries they are seeking to escape.

And she returned to the history behind the modern asylum system: 

“If the refugees on the MS St. Louis were to walk up to a port of entry on our southern border today, the majority’s interpretation would allow immigration officers to refuse even to consider their asylum applications by physically blocking them from stepping foot onto U.S. soil. The majority’s interpretation permits the Government to do that even if the refugees complied with all applicable laws and regulations, even if the port had ample capacity to inspect them, and even if turning them back would result in the very persecution from which they narrowly escaped.”

In other words, beyond statutory semantics, the majority on the Supreme Court of the United States has ruled to allow history to repeat itself. 

Paul Barrett, a former journalist with The Wall Street Journal and Bloomberg Businessweek magazine, is currently an adjunct professor at the NYU School of Law.