Roe for Dummies

By Nick Catoggio

Wednesday, July 01, 2026

 

For connoisseurs of postliberal histrionics, the tantrum that followed yesterday’s Supreme Court ruling on birthright citizenship was *chef’s kiss.*

 

Even those whose contempt for the modern right is a matter of record sounded surprised by how ugly the reaction to the decision was. And I share that surprise—to a point.

 

To hear the usual suspects wail, you would have thought the court had struck down a longstanding ban on natural-born citizenship for illegal immigrants. “I at least got to live for 40 years in a country that looks and functions something like America,” Daily Wire blowhard Matt Walsh lamented. “The fact that my children are having that opportunity stolen from them fills me with rage so deep I can’t describe it. I truly hate the people who have done this to us.”

 

Walsh is a rhetorical drug dealer who’s gotten rich peddling rage to populists, so he was professionally obliged to have a conniption when the ruling didn’t go his way. But for the record, as dozens of people reminded him in replying to his tweet, nothing about immigration policy changed yesterday. The country that “looks and functions something like America” that he spent 40 idyllic years living in has recognized natural-born citizenship for children of aliens since 1898. All the Roberts court did was rubber-stamp the status quo.

 

If you’re intent on making America great again and your idea of when it was “great” falls somewhere within the last 128 years, that period of greatness included birthright citizenship for immigrants’ offspring.

 

Walsh was restrained compared to other MAGA drug pushers, though. Some likened the decision to Dred Scott. Others proposed policy workarounds such as the “Dissolution of the Union” or, less ambitiously, requiring “sterilization of all foreign visitors prior to entry.” More than a few took the cherchez la femme approach by giving Amy Coney Barrett, the lone Trump appointee to join the majority opinion, the David Souter treatment for her unforgivable betrayal.

 

Can Americans trust a judge who adopted Haitian children to rule impartially in a case involving nonwhite immigrants, some asked? (Barrett voted to let the president end temporary protected status for Haitian refugees literally a week ago.) Can Americans trust a judge with two X chromosomes, period? “The real problem is that women make great mothers, not civil magistrates,” one pastor sniffed, ignoring the many—many—wins for the right that Barrett has delivered in her brief time on the bench.

 

It is a little surprising that the Supreme Court upholding a precedent set before many Americans’ grandparents were born, in a case that every legal analyst expected the president to lose, would trigger the Chudpocalypse. But it ain’t that surprising.

 

For one thing, imagining an idealized America that never actually existed and then getting mad that modern America doesn’t look more like it is basically Populism 101. I can’t think of a court ruling more likely to antagonize the phony nostalgia and knee-jerk catastrophism of Walsh et al. than one that reminds them that immigrant children born in America have been receiving citizenship since before the Good Ol’ Days.

 

Beyond that, remember that postliberal nationalism is a tribal revolutionary movement. Its purpose is to defend the traditional preeminence of the white, Christian, male-dominated majority in American life. Yesterday’s ruling cut to the bone of that cause—affirming the mostly nonwhite native-born immigrant population’s claim to American identity; issuing from a right-wing court that was expected to share the base’s cultural anxieties; and spearheaded by support from its four women members, including Trump’s handpicked replacement for Ruth Bader Ginsburg.

 

It was a grievous disappointment to the sort of person whose interest in Republican politics is coextensive with their interest in “the Great Replacement,” which describes a lot of Trump voters. And it’s no answer to tell them that the decision did nothing more than uphold the law as it’s stood for ages. The point of the revolution is to overturn the law as it’s stood for ages. What do you think the word “postliberal” means, exactly?

 

Yesterday’s ruling is destined to become a rallying cry for the right, a supposed stain on American law that Republican judicial nominees must commit to overruling by interpreting the 14^th Amendment more sensibly than the current court has.

 

Which sounds … familiar, no? At last, the postliberal right has its own Roe v. Wade.

 

‘Hanging by a thread.’

 

That explains why the presumptive Republican nominee for president sounded oddly upbeat about the decision on Tuesday night.

 

“I do actually think there’s a really big silver lining here,” J.D. Vance told Fox News, “and that’s the simple fact that a lot of legal experts expected this case to go the wrong direction by 7-2 or even 8-1. The fact that this case was a 5-4 decision, effectively, means that the concept of birthright citizenship, which is an absurdity to the 14^th Amendment, that concept is hanging by a thread.”

 

Not exactly. There might be four votes on the court against citizenship in cases of “birth tourism,” i.e., when a pregnant woman enters the United States to give birth with no intention of staying here after delivering. But Clarence Thomas and Neil Gorsuch sounded open to extending natural-born citizenship to children of immigrants who do intend, however unlawfully, to remain domiciled in the U.S. permanently.

 

That’s the scenario that “Great Replacement” obsessives worry about. And, contra Vance, that scenario doesn’t appear to be hanging by a legal thread.

 

But it’s in his political interest to say so. In the same way that the prospect of overturning Roe motivated ambivalent conservatives to turn out for Donald Trump in 2016, overturning birthright citizenship might plausibly motivate various right-wing factions who feel ambivalent about the vice president to show up in 2028. Do you find Vance too dovish or antagonistic toward Israel for comfort? Do you find him not dovish or antagonistic enough? Do you simply dislike him on a gut level because he’s unlikable, as cynical, uncharismatic climbers tend to be?

 

Well, he’s going to put justices on the court who’ll cut the thread by which birthright citizenship for illegal immigrant children allegedly hangs. How do you feel about turning out for him now?

 

If that’s not enough to convince you that yesterday’s decision is likely to become a Roe-level litmus test for the right, consider the somersault being performed by Sen. Ted Cruz. Cruz is likely to challenge Vance in 2028, presumably under some cockamamie too-clever theory that he’ll prevail as the conservative in a three-way race once a Tucker Carlson-style upstart jumps in and divides the postliberal right. But Cruz suddenly has a problem: In 2011 he flatly insisted that “the 14^th Amendment provides for birthright citizenship” for the children of illegal immigrants—on camera.

 

On Tuesday morning he belatedly but hastily reversed himself, describing the court’s ruling as a “travesty.” For the moment, he’s limiting himself to calling on Congress to “restore the original meaning of the Citizenship Clause”—which won’t work, as he knows. (Although there are things Congress can do to reduce births by immigrants in the United States.) But, come 2028, for the sake of keeping pace with Vance, Cruz will surely have moved on to vowing to appoint justices who’ll overturn the decision. He has a keen eye for must-pass populist litmus tests (usually) and already grasps that this is one he can’t afford to fail.

 

Conservatives might pipe up indignantly at this point to note that their objections to Roe were quite different from postliberals’ objections to yesterday’s ruling. The Constitution famously doesn’t mention abortion, after all; the Supreme Court divined that unwritten right from the penumbras and emanations and whatnot of the 14^th Amendment’s Due Process Clause. Originalism gained traction among Republicans because it demanded that interpretations of the constitutional text be based on something sturdier than the “aura” of particular provisions.

 

Birthright citizenship is right there in the opening words of the 14^th Amendment, on the other hand, with the only question having to do with what it means for a newborn child to be “subject to the jurisdiction” of the United States. Jonah Goldberg is correct that the new right’s difficulty with that language resembles the left’s difficulty with the Second Amendment more so than conservatives’ difficulty with abortion: “It can’t mean what it says because I really don’t want it to!”

 

There’s another difference between the original Roe and its new postliberal analogue. Conservatives didn’t shoot themselves in the foot strategically before that earlier decision the way Trump and his supporters did before yesterday’s ruling.

 

As others have pointed out, it was extremely stupid for the president to force birthright citizenship before the court via an executive order rather than try to build popular support for legislative action on it. Had Congress taken the lead, claiming authority under Section 5 of the 14^th Amendment to limit the practice, it might have given John Roberts and Amy Coney Barrett something to think about. The six Republican-appointed justices like to see major questions of policy handled through Article I, you know.

 

They were never going to let a right as momentous as citizenship be altered by royal diktat. But Trump insisted on trying and his fans went along, and the dopey legal posture they took ultimately led to five votes in favor of birthright citizenship not merely for the children of illegal immigrants but for the children of birth tourists.

 

To repeat a point often worth repeating: Liberalism cares about process, postliberalism cares only about results. Rather than address birthright citizenship by embracing a methodical process, as conservatives did in championing originalism, postliberals counted on the court to dispense with the legal argle-bargle and find some pretext to arrive at the result they wanted. Roberts’ lengthy originalist defense of citizenship for anyone born in the United States in Tuesday’s majority opinion was the difference between success and failure.

 

Where there’s a will, there’s a way.

 

Whatever the legal distinctions might be, there are obvious political similarities between Roe 1.0 and Roe 2.0.

 

For starters, turning birthright citizenship into a right-wing cause célèbre will polarize voters around the issue the same way Roe polarized them around abortion. A colleague reminded me today that, in the early 1970s, the Southern Baptist Convention supported legal abortion in cases of rape, incest, and whenever there was “carefully ascertained evidence of the likelihood of damage to the emotional, mental, and physical health of the mother.” After the court guaranteed abortion on demand a few years later, the swelling pro-life backlash on the right carried the SBC along with it.

 

The fact that birth tourism now enjoys similar constitutional protection will similarly radicalize Republicans who were formerly torn about natural-born citizenship for immigrant children.

 

Likewise, in the same way that there were “weak-form” and “strong-form” conservative opponents of legal abortion, there will be “weak-form” and “strong-form” postliberal opponents of birthright citizenship. Many conservatives spent the Roe years urging the court to return abortion to the states so that democracy could do its thing; no way, said devout pro-lifers, who wanted the court to find a right to life in the 14^th Amendment that would bar blue states from legalizing the practice.

 

We’ll probably see something like that with Roe 2.0 too. Some Republicans with their eyes on public opinion, like Vance and Cruz, might call for yesterday’s decision to be overturned so that Congress can set policy on citizenship. No way, devout chuds will counter: We want the court to hold that the 14^th Amendment excludes children of noncitizens from natural-born citizenship. This subject can’t be left to the devices of a legislature that’s slowly turning commie.

 

Then there’s this observation from Jonah in his column yesterday:

 

The court’s decision has not spared us an ugly debate over birthright citizenship any more than Roe v. Wade spared America an ugly debate over abortion. Indeed, I suspect the debate will be uglier now, precisely because modest, incremental, legislative reforms have been put out of reach of the conventional political process. Instead, there will likely now be a fight for a(nother) constitutional amendment. Moreover, as with abortion, members of Congress can now take extreme positions precisely because they have been stripped of power and democratic accountability on the issue. The parties polarized over abortion for the same reason: There was no price to be paid for taking a zero-sum position on abortion.

 

I agree—again, to a point.

 

Nearly 50 years of democratic paralysis over Roe brought us Democratic politicians mindlessly treating abortion as contraception and Republican politicians mindlessly insisting that only a total ban will do. Jonah’s right that Tuesday’s ruling will encourage similar low-stakes extremism—although, given the postliberal trend in both parties, I’m guessing each would be pretty extreme on the subject even if the court had left them with room to legislate. Zero-sum positions like “citizenship for all” and “brown people out” are just how politics is now.

 

Jonah’s analysis is anachronistic in one way, though. The reason legislators felt powerless to change abortion law during the Roe era is because, under the prevailing liberal norms at the time, neither party dared attack the problem directly by packing the Supreme Court with justices who shared their position on the issue. They could have, but I don’t recall any serious talk of such a thing until the last 10 years.

 

Forced to choose between tolerating a constitutional right of abortion and destroying the judiciary’s prestige by expanding the court to produce certain desired rulings, conservatives spent decades choosing normal process over results.

 

Postliberals don’t work that way. Legislative reform of birthright citizenship isn’t out of reach for Congress, they would tell Jonah; all Republicans need to do is add a few justices who’ll agree to revisit the issue and vote Alito’s way. “Pack the court,” Federalist CEO Sean Davis proposed yesterday alongside his suggestion about requiring foreign visitors to be sterilized. “If Roberts wants to be a politician who writes laws instead of a judge, then he can fight with 10 more unelected legislators in robes.”

 

Postliberalism’s core conviction is that any policy problem can be solved with sufficient ruthlessness. If the Republican Party’s members in Congress aren’t ruthless enough to solve the new problem of birthright citizenship for illegal immigrant children, maybe a new party will be. Or maybe the left will solve it for them: If Democrats open Pandora’s box by packing the court themselves in 2029, an outraged GOP will have all the excuse it needs to pack the court in its own favor—replete with a new judicial litmus test about who gets citizenship and who doesn’t—the next time it controls the government.

 

And you can guess what kind of justices Republicans will be packing it with. Not the Amy Coney Barrett kind, who vote based on their earnest understanding of the law even when they know they’ll be vilified as turncoats by their own party for doing so. The other kind.

 

Conservatives wouldn’t want a court full of hacks and chuds but postliberals would welcome it. That’s the key difference between Roe 1.0 and Roe 2.0. And if that strikes you as yet another dopey shortsighted strategic preference by the new right that’s likely to backfire and sure to damage America, I regret to inform you that that’s all they’ve got.