By Ryan McMaken
January 30, 2025
Much of the debate over so-called "birthright citizenship" is over interpretations of the Fourteenth Amendment to the US constitution. Most of the people currently in power claim that the text means every baby born to every foreign national on American soil is an automatic US citizen. Others- like myself-believe that this interpretation is dubious and has always been a matter of debate.
In commentary on this topic, however, one often encounters assertions to the effect that rulings by the US Supreme Court provide the "definitive" or "final" interpretation. Or, put another way, there is an idea that once SCOTUS makes a ruling on something, then the ruling is "settled law." Even worse, some people think that once the Supreme Court has ruled on something, there is no point discussing it or challenging the currently popular interpretation of the law.
In truth, there is no such thing as settled law and the US Supreme court's interpretations are hardly definitive. In politics nothing is ever settled or permanent. No cause is ever won or lost permanently. Beyond the short term, everything is up for grabs.
This is true in the courts as everywhere else. At any given time, the court's rulings reflect modern ideologies and political realities. As these change, so do the court's rulings. Indeed, court's often "discover" that the rulings of past courts were somehow completely wrong, and the court then moves in a nearly opposite direction. The back-and-forth on Roe v. Wade is just one example.
So much for "settled" law.
The Mythology of the Supreme Court
These misconceptions about the Supreme Court's "definitive" rulings often stem from the idea that the US Supreme Court's bases its rulings on an apolitical deliberative process independent of political pressures and ideologies.
This has never been true. Like all institutions of the US government, whether we're talking about Congress, or the Federal Reserve, or the Supreme Court, the SCOTUS is a thoroughly political institution overseen by a group of political appointees who are biased by specific political ideologies.
For more on this mythology of the Supreme Court, see here.
How is it that a new crop of judges can come to entirely new and different conclusions that are virtually the opposite of the rulings that preceded them? The answer is simple. Judges fashion their rulings to reflect modern political sensibilities. Political ideologies and realities change, and thus federal judges will turn past court rulings on their head in order to reflect new views.
There are many such examples, but let's start with one of the court's most notorious rulings: Korematsu v. the United States.
In that ruling, the Supreme Court manufactured an unwritten power contained, they said, in the US Constitution: the power to round up American citizens of a particular race and put them in concentration camps.
The idea that the Federal government possessed such powers would have struck the average nineteenth-century American-including the federal judges-as outlandish. Yet, the nation's "greatest" legal minds of the Supreme Court in 1944 miraculously discovered a new power that just happened to align exactly with the US's war effort at the time.
To get an idea of the allegedly deep legal thinking behind the Korematsu decision, we need look no further than Justice Hugo Black who joined the majority vote on the court's support for the concentration camps. When asked about his ruling years later, Black remained unrepentant and simply stated that "Japs" were scary, so therefore ought to be rounded up: "[p]eople were rightfully fearful of the Japanese in Los Angeles.... They all look alike to a person not a Jap." Of course, Black and his colleagues in the court's majority covered up this simple-minded thinking with pages and pages of "jurisprudential" writing disguised to make their anti-Japanese edict look like it was born out of principled legal theory. The fact is that Franklin Roosevelt wanted to lock up all the "Japs," and the Supreme Court was going to do whatever it took to invent a rationale for the plan.
In 2018, the Supreme Court again decided that the "definitive" legal ruling of 1944 was wrong, and the opposite was true. Chief Justice Roberts wrote in Trump v. Hawaii that Korematsu was undefendable and "The forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority."
The Court has never existed independent of the ideological, historical, and political context that surrounds it. How could it? It is not a coincidence that the court almost never hands down rulings that run contrary to virtually everyone else in Washington, and which are therefore likely to be ignored. The court is careful to not sacrifice its prestige, so it only makes rulings that can count on support from at least some important pressure groups and power bases in the country. This is why we shouldn't be surprised that the Hugo court essentially deferred to the administration in 1944.
To do the opposite is to diminish the power of the court. For an example of what happens when the court does fully go against the zeitgeist we need look no further than the case of Worcester v. Georgia. In that case, the court handed down a decision saying, in effect, that white Georgians and the State of Georgia had no right to move onto Cherokee lands or intervene in their local sovereignty. It was a court ruling that went overwhelmingly against public opinion and neither Congress nor the White House were willing to intervene and rein in the Georgians against the hated Indians.
Many Americans know this as the case which prompted Andrew Jackson to say-probably apocryphally-"[Justice] John Marshall has made his decision; now let him enforce it!" What Jackson did say was this: "the decision of the Supreme Court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate." Jackson was right. The ruling was stillborn, and the court made itself irrelevant on the matter.
Modern judges don't like to be irrelevant or be ignored by presidents. Most of these judges have enormous egos. So, we find that the Court just happens to make rulings that are likely to garner public support and be enforced. The court knows what the political landscape is, and is careful to rule in ways that protect the court's power and keep the court "respectable."
But, political ideologies and realities change, and therefore the courts will change.
There are many examples, one of which, of course, is the Korematsu ruling. Another is how SCOTUS has ruled on abortion over the decades. In 1973, it was totally uncontroversial to regard abortion as a state and local matter, regardless of one's position on the morality of it. Then, in 1973, the Warren Court decided that SCOTUS had been reading the Constitution wrong for more than 180 years, and it turns out the abortion is a "right" guaranteed by the constitution. Then, fifty years after that the SCOTUS re-read the Constitution and suddenly realized that abortion is not a federally-protected right after all.
Which ruling is the "definitive" ruling that establishes "settled law"? The answer is: none of the above.
Another such case is Lochner v. New York (1905). In Lochner, SCOTUS made a very good ruling in which it decided that private contracts between private parties are to be respected, and the federal government ought not to interfere in contracts with interventions such as minimum wage laws. That was the allegedly definitive ruling for several decades before the rulings of the Lochner era were essentially thrown in the dumpster by the SCOTUS in the 1930s.
But, public ideologies had changed. To stay "relevant" and "current" the SCOTUS changed with the times.
So, if the US Supreme Court soon hands down a new ruling on the Fourteenth Amendment and birthright citizenship, it will reflect only modern political realities, and whatever the court's majority thinks it can get away with considering the political context of today. No matter how the court rules, it certainly won't be the "last word" on the matter, and nothing is decided beyond the short term.
Note: The views expressed on Mises.org are not necessarily those of the Mises Institute.