Brett Kavanaugh Just Exposed a Four Way Split Among the Supreme Court’s Own Conservatives

Donald Trump signed an executive order on day one to end birthright citizenship.

The Supreme Court just struck it down by a count of six to three.

But buried inside that ruling is a split even the Court's conservatives never saw coming.

Kavanaugh Broke From the Majority and Left the Constitution One Vote Short

Chief Justice John Roberts wrote the ruling in Trump v Barbara. He traced the citizenship guarantee back to English common law and said it covers nearly every child born on American soil, including kids born to parents who are here illegally or on temporary visas. Sonia Sotomayor, Elena Kagan, Ketanji Brown Jackson, and Amy Coney Barrett all signed onto that reasoning.

Brett Kavanaugh didn't.

Kavanaugh voted to strike down Trump's order, but he refused to touch Roberts' constitutional argument. He grounded his vote in a federal statute instead. "In my view, the Executive Order does not violate the Fourteenth Amendment," Kavanaugh wrote.

That single sentence means Roberts only has five votes behind his reading of the Constitution, not six. Kavanaugh gave Trump's order a sixth vote to lose. He didn't give Roberts a sixth vote to win.

The ACLU Already Declared This Case Closed

The ACLU filed this lawsuit, and its leadership is already calling the ruling a permanent guarantee that can never be touched again.

They're skipping past the one vote Kavanaugh refused to hand them.

A constitutional holding with five votes isn't the same as one with six. It's the difference between a settled question and a fight that's still very much alive, and the ACLU's victory lap doesn't mention that difference at all.

Thomas and Alito Weren't Finished Either

Clarence Thomas wrote a 91 page dissent, joined by Neil Gorsuch, calling the majority's account of history wrong. Thomas argued the amendment's framers meant to secure citizenship for freed slaves, not for the children of people simply passing through the country.

Samuel Alito added his own 39 page dissent, arguing the ruling all but invites people to enter or stay in the country illegally just to lock in citizenship for their children.

Gorsuch tacked on a solo dissent of his own, questioning the majority's reliance on the 1898 Wong Kim Ark precedent, and admitted he had doubts an order like Trump's could lawfully reach children whose parents had already been settled here for years.

Four justices. Four opinions. Not one of them fully agreed with what Roberts wrote.

Congress Just Got the Opening It's Been Waiting For

Trump wasted no time on Truth Social, saying Congress could simply "make it up" through legislation instead of chasing a constitutional amendment. Kavanaugh's opinion backs that path. Roberts' opinion does not.

Any bill still has to survive the five justices who say the Constitution itself guarantees birthright citizenship for nearly every child born here. That's a real wall. But five votes isn't six, and Trump knows exactly what that gap is worth.

Executive Order 14160 never took effect for a single family. Economists at the Migration Policy Institute put the number at roughly 255,000 children a year who stood to lose recognized citizenship if it had. The order died Tuesday. The fight over those 255,000 children a year didn't.

Democrats are celebrating a win that four justices just told them isn't permanent.

Sources:

• Jim Thomas, "Barbara Ruling Exposes Deep Originalist Rift on High Court," Newsmax, July 12, 2026.
• Fox News, "Trump loses birthright citizenship bid, Kavanaugh offers Congress path," Fox News, July 2026.
• Townhall, "Justice Kavanaugh May Have Handed the United States a Roadmap to Fix Birthright Citizenship," Townhall, June 30, 2026.