As the U.S. Supreme Court heard arguments on Wednesday over President Donald Trump’s executive order seeking to end birthright citizenship, Tea Party Nation founder Judson Phillips said the case may ultimately hinge on a small group of justices and even subtle political pressure.
Trump, who signed the order in January 2025, made a historic appearance at the Court during oral arguments, a move Phillips believes could influence the outcome.
“I’m glad he’s doing that,” Phillips said on The Michael Patrick Leahy Show. “And part of it is a little bit of political pressure… there’s a squishy middle in the Supreme Court, and his presence may help sway that a little bit.”
The case centers on the interpretation of the 14th Amendment to the U.S. Constitution, which has long guaranteed citizenship to nearly all individuals born on U.S. soil. Trump’s order seeks to deny that right to children of undocumented immigrants and some temporary visa holders.
Phillips laid out what he sees as a sharply divided Court, invoking a principle once described by former Justice William O. Douglas.
“William O. Douglas… used to have this thing he called the rule of five,” Phillips explained. “If you want your side to win, you gotta have five people who sign off on the opinion.”
According to Phillips, the three liberal justices are expected to uphold birthright citizenship, while Justices Clarence Thomas and Samuel Alito are likely to support Trump’s position.
That leaves the outcome in the hands of three conservative-leaning justices often viewed as swing votes.
“I think Gorsuch will vote the right way on this one… bringing it up to three-three,” Phillips said. “But in order to win at that point, we need both… we need Kavanaugh, we need Roberts, and we need Amy Coney Barrett.”
Still, Phillips expressed doubt that Trump’s side will secure enough support.
“I don’t see us getting two of the three,” he said. “I think Kavanaugh may come our way… but I think Roberts and Barrett are gonna go the other way… and I think it ends up being a five-four decision.”
During arguments, Chief Justice John Roberts questioned the legal foundation of Trump’s order, particularly the interpretation of the phrase “subject to the jurisdiction thereof.”
Phillips acknowledged the complexity of the issue, noting how courts often rely on legislative history to interpret ambiguous statutes.
“When the appellate courts and the Supreme Court look to interpret a statute, one of the things they look at is what is called the legislative history,” he said. “They’ll go back and look at the debate and discussion and then they can tell… what they meant.”
At the same time, he noted that not all justices agree with that approach, referencing the late Justice Antonin Scalia’s skepticism of legislative intent.
The case could redefine the scope of the 14th Amendment, originally ratified in 1868 in the aftermath of the Dred Scott v. Sandford decision, which denied citizenship to Black Americans.
Phillips suggested that even if Trump’s argument is compelling, the Court may be reluctant to reinterpret such a long-standing constitutional principle.
“A lot of the Supreme Court has said… it is not their job to fix a bad law that Congress wrote because Congress wrote the law badly,” he said.
A final ruling in the case is expected later this term.
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Kaitlin Housler is a reporter at The Tennessee Star and The Star News Network. Follow Kaitlin on X / Twitter.
