The Supreme Court’s term ends within days and several major decisions remain outstanding, including cases touching election integrity, birthright citizenship, and transgender athlete participation in women’s sports.
Morgan Marietta, professor at the Institute of American Civics at the University of Tennessee, Knoxville, joined Dan Proft on Chicago’s Morning Answer to assess where the court is likely to land on each.
On mail-in ballots, the pending case Watson v. RNC asks what the Constitution means when it specifies that an election takes place on a certain day. Marietta said the question is whether that language permits states to accept ballots arriving days or even weeks after election day, a practice that has expanded dramatically as states shifted toward predominantly mail-in voting. He said the practical consequence of extended counting windows, as California demonstrated most recently, is the creation of a perception of fraud even in the absence of actual fraud, because voters cannot understand why ballots cannot be counted promptly and the extended timeline provides opportunity for ballot harvesting and other manipulation. He said the court appears to be moving toward what he described as an ordinary person’s interpretation of constitutional language, recognizing the Constitution as a contract between the people and the government whose terms cannot be unilaterally rewritten by those in power. He expects the court to affirm that state legislatures have the authority to restrict post-election-day ballot reception, though he does not expect the court to impose a national standard, instead deferring to federalism and allowing states that prefer extended collection windows to keep them. He said Congress has the constitutional authority to create national election administration standards and could preempt state law on these questions, but likely lacks the political will to do so at present.
On birthright citizenship, Marietta offered the most detailed and most pessimistic assessment. The case asks whether the Fourteenth Amendment’s citizenship clause, which grants citizenship to all persons born in the United States and subject to the jurisdiction thereof, confers automatic citizenship on children born to people in the country illegally or temporarily. He said the honest reading of both the text and the historical context makes clear that it does not, and that no one at the time of the amendment’s ratification understood it to create unlimited universal birthright citizenship. The amendment was written specifically to ensure that recently freed slaves and their descendants were unambiguously American citizens, a profoundly important purpose that had nothing to do with future immigration policy.
He said the critical qualifying phrase, subject to the jurisdiction thereof, establishes a consent requirement: a mutual agreement in which a person states they wish to live under American sovereignty and the United States agrees to accept them. He walked through two foundational cases. The first, Wong Kim Ark from the 1890s, is routinely taught in law schools as establishing universal birthright citizenship but actually addressed only the narrow question of whether the child of permanent legal residents, the contemporary equivalent of green card holders, was automatically a citizen. The court said yes, precisely because the parents had demonstrated consent by establishing permanent legal residency. The case said nothing about children born to people in the country illegally or temporarily. The second case, Elk v. Wilkins from the 1880s, decided roughly twenty years after the Fourteenth Amendment’s ratification, held that a Native American man was not a birthright citizen because he was under the sovereignty of his tribe rather than subject to the jurisdiction of the United States, and neither he nor the government had established the mutual consent the amendment requires. That holding was later superseded when Congress explicitly extended jurisdiction to Native Americans in the 1920s, further confirming that subject to the jurisdiction is a meaningful qualifier rather than a formality.
Despite the strength of this textual and historical argument, Marietta said he is not optimistic the court will rule accordingly. He identified Chief Justice Roberts and potentially Justices Barrett and Gorsuch as justices who may lack the political courage to state publicly what the text actually says, given the intensity of the political and cultural backlash such a ruling would provoke. He compared it to the decades it took the court to overturn Roe v. Wade despite the original decision being transparently invented from whole cloth, noting that the birthright citizenship question may generate even more vitriol because immigration has become the defining cultural battleground of the current political era. He said he retains some hope that the justices may have used the extended deliberation period to work through the arguments and that courage can be contagious if even one justice takes the lead, but said his honest expectation is that the court will not do the right thing on this case.
On transgender athletes, Marietta was more confident. The case involves West Virginia’s law prohibiting biological males who identify as female from competing in women’s sports. He framed the underlying question as one the court regularly faces but that is poorly understood: rulings on disputed social facts. He said the court must decide or allow states to decide whether a transwoman is a woman or a man for purposes of law, just as the court had to decide or allow states to decide what a fetus is for purposes of abortion law. He said the likely outcome is what he calls federalism of facts, meaning the court will hold that because American society is genuinely and deeply divided on this factual question, states have the authority to decide for themselves which factual interpretation their laws will recognize. West Virginia can decide that a person born male remains male for purposes of athletic competition regardless of self-identification, just as another state could decide otherwise. He said this is the constitutionally correct framework and expects the court to adopt it.