Most historians claim that the worst United States Supreme Court bench was presided over by Chief Justice Roger Taney. Taney, who sat on the Court from 1836 until 1864 wrote the opinion in the 1857 case entitled Dred Scott v. Sanford, 60 US 93, in which the Court held that African-Americans could not be considered United States citizens and that Congress could not prohibit slavery in the then existing territories. The Dred Scott decision is regarded as the worst United States Supreme Court decision in the Court’s history. It would take two amendments to the United States Constitution to overturn the Dred Scott decision, the Thirteenth Amendment which outlawed slavery and the Fourteenth Amendment which granted citizenship to all persons born in the United States. It is this latter protection that the Trump Administration is attempting to narrow.
For the past 125 years, since it was adopted in 1868, the United States Supreme Court has consistently held that all persons born within the United States are citizens of the United States.
On January 20, 2025, Trump issued an executive order in which he sought to eliminate birthright citizenship for the children of undocumented persons residing in this country. Since its issuance multiple Courts have entered nationwide injunctions prohibiting the Executive Order from being enforced. In a decision entitled Trump v. CASA, 606 US____ (2025), in a 6-3 decision the Court granted a limited stay to the lower Court decisions and did not address the issue of birthright citizenship. On September 25, 2025, the Trump Administration filed a petition with the Court requesting it decide the issue of birthright citizenship.
Although birthright citizenship has been universally affirmed for 125 years it would be a mistake to assume that the right is sacrosanct under the Roberts Court. Since Trump has added three judges to the Court, a number of rights and protections have been overturned. Most notably the right to reproductive privacy enshrined in Roe v. Wade, 410 US 113 (1973) and confirmed in Planned Parenthood v. Casey, 505 US 833 (1992) .Both were overturned in Dobbs v. Jackson’s Women Health Organization, 597 US 215 (2022). Likewise affirmative action policies, permitted under the case Grutter V Bollinger, 539 US 306 (2003), were overturned in Students for Fair Admissions v. Harvard, 600 US 181 (2023).
While all the current majority justices pledged fealty to the principle of stare decisis (the doctrine that courts must follow precedents set by previous decisions when deciding similar cases),while discussing the Roe and Casey decisions during their confirmation hearings, no sooner when they comprised a majority of the Court did they abandon stare decisis and engage in these reversals.
In what will prove to be one of the worst decisions handed down by the United States Supreme Court, the majority provided the only convicted felon to occupy the White House with immunity from criminal prosecution during his term of office in Trump v. United States, 603 US 593 (2024). These self-described “originalists” and “textualists” did so despite the fact that nowhere in the United States Constitution or the Federalist papers is presidential immunity discussed.
Indeed the only mention of the subject in the Constitution and the Federalist Papers is in the Impeachment Clause, which provides for the removal of the president for high crimes and misdemeanors and in Article 1, Section 3,Clause 7, which provides “ judgment in case of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States; but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment according to law.”
In Federalist Paper Number 65, Alexander Hamilton wrote.
“The punishment, which may be the consequence of conviction upon impeachment, is not to terminate the chastisement of the offender. After having been sentenced to a perpetual ostracism from the esteem and confidence in honors and emoluments of his country, he will still be liable to prosecution and punishment in the ordinary course of law.”
Lest anyone doubt that the Court might abolish birthright citizenship, they need only read Clarence Thomas’s concurring opinion in Dobbs V Jackson Women’s Health Organization, in which he wrote.;
“…For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is “demonstrably erroneous,” Ramos v. Louisiana, 590 U. S. ___, ___ (2020) (THOMAS, J., concurring in judgment) (slip op., at 7), we have a duty to “correct the error” established in those precedents, Gamble v. United States, 587 U. S. ___, ___ (2019) (THOMAS, J., concurring) (slip op., at 9). After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.” 597 U.S. ____ (2022)
Thus, Thomas is urging the Court to wipe away the right to privacy enunciated in Griswold v. Connecticut,381 US 479 (1965) which involves the right to use birth control; Lawrence v. Texas, 539 US 538(2003), which extended the right to privacy to sex between consenting adults and Obergefell v .Hodges, 544 US 568 (2015) which enshrined the right to same sex marriage. Noticeably absent from Thomas’s litany of cases he would like to reverse is Loving v. Virginia, 388 US 1, (1967) which held that state laws banning interracial marriage violated the Equal Protection and Due Process clauses of the Fourteenth Amendment. Clearly, in Thomas’s case hypocrisy knows no bounds.
The Roberts Court decision in CASA v. Trump__US__, will illuminate how much danger there is to the right to privacy. If the Court is willing to reverse 125 years of jurisprudence surrounding this right, it is only a short step to revisiting the Dred Scott decision in which, I suspect, Clarence Thomas would write an opinion affirming it and the Roberts Court would then join the Taney Court in infamy.