Two cheers – but not three – for Roberts and Barrett

This article examines two pivotal, albeit hypothetical, Supreme Court decisions from a recent term, highlighting the unexpected alignment of Chief Justice John Roberts and Justice Amy Coney Barrett with the Court's liberal wing. The first case, "Trump v. Barbara," is presented as a monumental affirmation of birthright citizenship under the Fourteenth Amendment, while the second, "Watson v. Republican National Committee," is described as upholding states' ability to count mailed ballots post-Election Day if postmarked by that date. These rulings, as depicted, underscore significant developments in constitutional law and election administration, offering critical insights for legal practitioners on the Court's evolving jurisprudence and the practical implications for citizenship and electoral processes.

The recently concluded Supreme Court term, as described by SCOTUSblog, presented two significant decisions that saw an unusual coalition form on the bench, with Chief Justice John Roberts and Justice Amy Coney Barrett joining the Court’s three liberal justices. This alignment, particularly noteworthy given the Court's conservative majority, resulted in pivotal rulings on fundamental issues of American law. These decisions, while presented in a hypothetical context, offer a compelling lens through which to examine the enduring principles of constitutional citizenship and the practicalities of election administration.

The first of these hypothetical cases, "Trump v. Barbara," touches upon the bedrock principle of birthright citizenship, enshrined in the Fourteenth Amendment to the United States Constitution. Specifically, the Citizenship Clause of the Fourteenth Amendment states, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." This clause was a direct response to the *Dred Scott v. Sandford* decision of 1857, which denied citizenship to African Americans, and has been consistently interpreted to grant citizenship to nearly all individuals born on U.S. soil, irrespective of their parents' immigration status. The excerpt suggests a reaffirmation of this long-standing doctrine, emphasizing the Equal Protection Clause's role in guaranteeing this right.

The second case, "Watson v. Republican National Committee," delves into the statutory framework governing federal elections. Federal law establishes the "Tuesday next after the 1st Monday in November" as the day for the election of Representatives and Delegates to Congress, and for the appointment of electors for President and Vice President. While these statutes set a uniform Election Day, states retain significant authority over the administration of elections, including rules for ballot casting and counting. The practice of counting mailed ballots that arrive after Election Day, provided they are postmarked by that date, has been a contentious issue in recent election cycles, often leading to litigation over state-specific rules and their interplay with federal mandates.

In "Trump v. Barbara," the hypothetical Supreme Court decision is described as a monumental affirmation of birthright citizenship, rooted in the Equal Protection Clause of the Fourteenth Amendment. This ruling, with Chief Justice Roberts and Justice Barrett joining the liberal bloc, would solidify the interpretation that the Constitution guarantees citizenship to virtually all children born in the United States, with only rare exceptions for those not subject to U.S. jurisdiction, such as children of foreign diplomats. The excerpt notes Justice Kavanaugh's dissenting view, which, while acknowledging statutory conferral of citizenship, posits that Congress possesses the authority to narrow the scope of birthright citizenship constitutionally. This distinction highlights a fundamental tension between a broad constitutional guarantee and potential legislative power, a debate that has significant implications for immigration policy and the definition of national identity. The majority's stance, as described, reinforces over a century of precedent, notably *United States v. Wong Kim Ark*, ensuring that citizenship is not contingent on parental status or origin.

The "Watson v. Republican National Committee" decision, authored by Justice Barrett, addressed the contentious issue of mailed ballots. The Court's five-justice majority, again including Roberts and Barrett, held that federal statutes specifying Election Day for presidential and congressional elections permit states to count ballots that arrive after Election Day, provided they were postmarked by the official date. This interpretation suggests a deference to established state practices and a recognition of the logistical realities of mail-in voting. The dissenters, conversely, would have compelled states to alter decades-old practices, implying a preference for stricter adherence to the Election Day deadline for ballot receipt. This ruling, if real, would provide crucial clarity and stability to election administration, particularly in an era of increased reliance on absentee and mailed ballots, by affirming the validity of postmark-based counting deadlines.

The alignment of Chief Justice Roberts and Justice Barrett in these two hypothetical cases is particularly striking. Their votes with the Court's liberal justices on issues as disparate as constitutional citizenship and election procedures suggest a pragmatic or institutionalist approach, potentially aimed at upholding established legal principles or avoiding disruptive changes to long-standing practices. This 'two cheers' scenario, as characterized by SCOTUSblog, indicates a willingness to cross ideological lines, which could signal a more unpredictable, yet potentially stabilizing, dynamic within the Court on certain issues.

The hypothetical decisions in "Trump v. Barbara" and "Watson v. Republican National Committee," as outlined, represent significant legal developments with profound implications for practitioners. The reaffirmation of birthright citizenship, even if through the lens of the Equal Protection Clause, would provide a robust constitutional foundation for the status of individuals born in the U.S., potentially limiting future legislative attempts to curtail this right. Attorneys advising on immigration, family law, and constitutional challenges would need to consider this strong judicial endorsement.

Similarly, the ruling on mailed ballots in "Watson" would offer much-needed certainty for election law practitioners and state election officials. It would validate existing state practices that allow for the counting of timely postmarked ballots, thereby reducing the likelihood of last-minute legal challenges based on ballot receipt deadlines. Practitioners should closely monitor any actual cases that align with these described holdings, as they would shape the landscape of constitutional rights and electoral processes for years to come. The unexpected judicial coalitions highlighted in these decisions also serve as a reminder for attorneys to remain attuned to the evolving dynamics and potential cross-ideological alliances within the Supreme Court.