Empirical SCOTUS is a recurring sequence by Adam Feldman that appears at Supreme Courtroom knowledge, primarily within the type of opinions and oral arguments, to supply insights into the justices’ determination making and what we are able to count on from the courtroom sooner or later.
As Amy Howe reported for SCOTUSblog on Wednesday, the Supreme Courtroom heard simply over two hours of oral argument on April 1 in Trump v. Barbara, the problem to President Donald Trump’s executive order ending birthright citizenship for youngsters born in the US to oldsters who’re undocumented or current within the nation on momentary visas. Solicitor Basic D. John Sauer argued for the federal government. ACLU Nationwide Authorized Director Cecillia Wang argued for a category of affected youngsters and households. Trump attended the argument – the primary sitting president to take action – and departed shortly after Sauer completed his presentation.
Each decrease courtroom to contemplate the manager order has blocked it. The query earlier than the justices is whether or not the order complies with the citizenship clause of the 14th Modification and 8 U.S.C. § 1401(a), which codifies the citizenship clause. The federal government’s concept activates the phrase “topic to the jurisdiction thereof” within the citizenship clause and the statute, which Sauer argued must be learn to require the dad and mom’ allegiance and domicile (that’s, everlasting house in or reference to the US) – ideas he contended would exclude unauthorized immigrants and momentary visa holders from the clause’s attain. Wang pressed the broader studying: that just about everybody born on U.S. soil is a citizen, with slender exceptions for youngsters of international diplomats and hostile occupying forces.
Now that the mud has (considerably) settled from oral argument, I intently analyzed the transcript to essentially perceive how the argument unfolded – who drove it, what it centered on, and what it tells us a few potential final result.
What the transcript reveals
To begin with, the advocates acquired a great deal of phrases in (Sauer particularly) however the bench in the end managed the argument.
The broadest measure of an oral argument is, obviously, who does the talking. In Trump v. Barbara, the bench spoke a combined 9,454 words – more than either advocate. Sauer spoke 7,575 words across 110 exchanges. Wang spoke 4,861 words across 77 exchanges.
Among individual justices, Justice Amy Coney Barrett led (just barely) in total words (1,738), followed closely by Justices Ketanji Brown Jackson (1,726) and Samuel Alito (1,417). Justice Neil Gorsuch spoke 1,126 phrases and Justice Brett Kavanaugh 1,084. On the different finish had been Chief Justice John Roberts at 357 phrases and Justice Clarence Thomas with simply 242 phrases.
An fascinating sample emerges after we look to what every justice targeted on. Oral arguments on the Supreme Courtroom fluctuate broadly on this regard. Some are dominated by pragmatic and doctrinal issues. However this one was dominated by historical past and originalism.
The originalism-intensity measure – a fee of originalist-theme references per 1,000 phrases spoken – captures the diploma to which every participant framed the argument in historic and originalist phrases. Arch-originalist Thomas led at 37.2 references per 1,000 phrases, with Jackson (who’s actually not a self-described originalist) shut behind at 34.2. Of word, the justice least targeted on originalism was the chief, who targeted on historical past far lower than anybody else.
As for specific themes and issues, the argument was organized around a relatively small number of doctrinal questions. “Citizenship” was the most frequently referenced theme across all three speaker groups (the bench, Sauer, and Wang). “Domicile” ranked second overall. “Allegiance” came in third, and “history” and “jurisdiction” filled out the remaining space.
Among the justices, the graph above reveals their individual priorities. For example, Jackson concentrated on allegiance, domicile, citizenship, and history/originalism. Barrett was more attuned to citizenship, jurisdiction, and history/originalism. Alito was focused most on precedent and domicile – consistent with his questioning of Wang on the 1898 case of Wong Kim Ark, the court’s most important precedent on birthright citizenship. Kavanaugh was more diffuse but spoke most often of precedent and history/originalism.
I next studied how much questioning each justice did of each advocate. Gorsuch concentrated heavily on Sauer and much less on Wang. Jackson and Roberts behaved similarly. On the other side, Alito directed most of his questioning to Wang – as did Barrett and Kavanaugh. Justice Sonia Sotomayor and Thomas were more balanced.
In terms of substance, Gorsuch and Jackson were perhaps the most hostile to Sauer, pressing him on his argument’s internal coherence. Same with the the chief. Overall, Barrett is the hardest justice to place: her questioning skewed heavily toward Wang, but her questions focused on administrability and the nature of Wong Kim Ark rather than sympathy with the government’s core theory. Kavanaugh focused more on Wang’s argument as well, although his questioning about Congress’ decision to reenact the birthright-citizenship language after Wong Kim Ark cut against the government. Alito’s lopsided focus on Wang and Thomas’ originalist framing both track with likely votes for the government.
The pressure data, taken together, are most consistent with a 7-2 or 6-3 outcome favoring the challengers – with Thomas and Alito as the most probable dissents, and Barrett as the swing justice.
What it all might mean
The transcript data from Trump v. Barbara reveal (unsurprisingly) a highly-engaged bench, focused on the history and precedent underpinning the citizenship clause, and a majority more skeptical of the government than the challengers.
Regarding the focus on history, the argument was conducted overwhelmingly in the language of 1868 – when the 14th Amendment was ratified. Every justice who spoke substantively (including the court’s liberal members) engaged with questions of original meaning, historical allegiance, and the scope of the citizenship clause as understood at the time of ratification. Thomas and Jackson – from different interpretive directions – perhaps most anchored the argument in that historical terrain. Sauer built his presentation around it, and Wang engaged it while also centering her argument on precedent such as Wong Kim Ark.
The pressure on advocates was asymmetrical. Gorsuch, Jackson, and Roberts concentrated their questioning on Sauer, testing whether his limiting principles on the citizenship clause – domicile, allegiance, lawful subjection – actually survived the originalist inquiry he invoked. Barrett, Alito, and Kavanaugh concentrated more on Wang, asking whether her broad rule could account for the language and logic of Wong Kim Ark – though (with the exception of Alito) were somewhat less hostile to her than those questioning Sauer. Justices Elena Kagan, Sotomayor, and Thomas were more evenly distributed and, in Thomas’ case, sparing but targeted.
Overall, the justices tested both arguments – and the data suggest they found both sides’ positions vulnerable at specific points, but a majority appeared skeptical of the government’s theory. We should know for sure by late summer, when a decision is expected.
Cases: Trump v. Barbara (Birthright Citizenship)
Beneficial Quotation:
Adam Feldman,
What oral argument advised us within the birthright citizenship case,
SCOTUSblog (Apr. 3, 2026, 12:00 PM),
https://www.scotusblog.com/2026/04/what-oral-argument-told-us-in-the-birthright-citizenship-case/