Trump’s Grip on the Supreme Court Is Slipping – And the Birthright Citizenship Case Shows Why

Trump won roughly 28 of 30 emergency appeals at the Supreme Court in 2025. The streak lasted 14 months. Wednesday’s oral arguments over birthright citizenship made it clear the streak is over, and the administration’s own lawyers knew it was coming.

---

---

The way the Trump Supreme Court run worked was never about legal invincibility. Solicitor General John Sauer controlled which cases reached the justices. When lower courts blocked Trump’s immigration policies, his mass firings of federal employees, and the abrupt cancellation of billions in federal contracts, Sauer’s team chose only the fights they expected to win and framed each one as a national emergency requiring immediate action. The court moved fast. The wins piled up.

Traders on Polymarket are currently pricing a 96% chance that the Supreme Court strikes down Trump’s birthright citizenship executive order — with $64,400 in real money behind that call. The odds moved sharply after Wednesday’s oral arguments, where conservative justices including Amy Coney Barrett and Neil Gorsuch openly questioned the administration’s position.

Georgetown law professor Stephen Vladeck, one of the more persistent critics of how the court handled its so-called shadow docket, put the strategy plainly: the sample set was not random. It was the set of cases Trump’s legal team chose to escalate, selecting for positions where they were inherently stronger. Critics among the liberal justices said the court was being too deferential, treating every lower-court rebuff as a crisis. But the wins kept coming, and the perception hardened that Trump had the court firmly in his pocket.

Then February happened.

The Supreme Court struck down Trump’s sweeping tariff program, and the optics shifted overnight. The administration’s use of the National Guard to control anti-ICE protests ran into similar resistance. And now the birthright citizenship ruling case, which would strip automatic citizenship from children born to undocumented immigrants and foreigners on short-term visas, spent Wednesday in oral argument that sounded to most observers like a third consecutive loss forming in real time.

Roman Martinez, who clerked for Chief Justice John Roberts and later for Justice Brett Kavanaugh when he sat on the appeals court, described what happens when cases move from the emergency track to full briefing: “The big lesson is the court is going to be more skeptical of the administration on the merits docket than it has been on the shadow docket.” He added that the administration would win some and lose some, which is a sentence that would have seemed unremarkable in any other presidency but lands differently after 14 months of near-total dominance.

The structural problem is that Sauer’s control over the docket is eroding. On the emergency track he could steer. He passed up Supreme Court appeals of orders that blocked Trump’s crackdown on Harvard University and his attempt to freeze out several prominent law firms, prioritising cases where the legal ground was firmer. That ability to pick only the better fights does not survive the transition to the regular merits process. Cases that won quick emergency relief are now returning for full argument, and the justices have the time to examine the underlying legal reasoning rather than simply the urgency of the moment.

Vladeck put it directly: earlier in the process the solicitor general dominates the conversation. As cases work their way back to the court, the SG loses a fair amount of that control.

Sauer appeared to understand this shift was coming. At a judges’ conference last September he joked about the “terrifying” prospect of arguing all the emergency cases that racked up wins in Trump’s early months. Who was going to argue all these cases, he asked.

The Supreme Court immigration battle over birthright citizenship may answer that question sooner than the administration would like. The justices were visibly skeptical during Wednesday’s session, and a ruling against the administration would add a third consecutive high-profile defeat to a record that once looked untouchable.

The court is not turning on Trump. It is simply doing what courts do when the emergency rush is over and the full legal arguments arrive: it is reading them.