In two recent immigration cases, the Court made clear how easily rights can erode when they depend on statute instead of the Constitution. 
A vigil before the Supreme Court hears arguments on denying potential asylum seekers entry to the U.S. on Tuesday, March 24, 2026. (Bill Clark / CQ-Roll Call, Inc via Getty Images)
During its 2026 spring term, the Supreme Court heard two important immigration cases within a week of each other: Noem v. Al Otro Lado on March 26, and Trump v. Barbara on April 1. Both involve profound issues of human rights and flagrant violations of law by the Trump administration. Both will likely disproportionately affect the lives of women and their children. Both were decided in the plaintiff’s favor by lower courts.
Nonetheless, they are critically different in one respect: Noem v. Al Otro Lado, a case about the right to asylum, is based on differing interpretations of domestic law—while Trump v. Barbara is a case about birthright citizenship based on differing interpretations of the 14th Amendment to the Constitution.
That crucial difference of where the disputed right sits—in U.S. code or the Constitution—may lead to drastically different outcomes.
Each case is important on its own, but taken together, they offer a lesson in how fragile many rights can be, particularly in an era of expanded executive branch authority.
Listening to the arguments in these cases made me realize just how critical it is to finish the job of formally adding the Equal Rights Amendment to the Constitution.
Although the ERA has been ratified by the requisite number of states, Congress has yet to officially make it part of the Constitution. Before the Trump era, inertia might have been one of the biggest barriers to finishing the task Alice Paul began almost 100 years ago, but today, with a Supreme Court hostile to implied rights, an executive branch that flagrantly violates laws and a cultural agenda from Project 2025 determined to roll back rights for women and so many other groups, we need all the protection we can get.
A group of activists gather at the National Archives, to demand action on the Equal Rights Amendment, calling for its full ratification and recognition on January 10, 2025. Protesters hung a large banner on the building. (Celal Gunes / Anadolu via Getty Images) Two Cases, Two Advocates—and a Shared Insistence on the Real Cost of Denied Rights
Neither case before the Court focuses exclusively or even directly on women’s rights, although women have been deeply involved in both cases as plaintiffs, litigators and friends of the Court.
The Center for Gender and Refugee Studies serves as co-counsel in the asylum case (Noem v. Al Otro Lado), which was argued before the Court by Kelsi Brown Corkran, Supreme Court director at the Institute for Constitutional Advocacy and Protection. The ACLU’s national legal director, Grace Wang, argued for the respondents in Barbara. Both women presented eloquently and forcefully, matching the government point for point, but doing something more—grounding their arguments in the terrible cost of denying people their rights.
Al Otro Lado stems from a now defunct policy during the first Trump administration which required federal officials to turn people away at the border before they could invoke their right to asylum. Barbara is a challenge to Trump’s Jan. 20, 2025, executive order denying citizenship to the children of unlawfully present immigrants and those, like students or workers, in the country on temporary visas.
In both cases, the government attempts to rewrite decades of settled law, expanding its authority to decide who has the right to seek asylum or to be a citizen, without respect to Congress or the Constitution.
Noem v. Al Otro Lado: Parsing “Arrives In” While Asylum Seekers Are Turned Away
What became evident during oral arguments is how nimble this Court has become in dissecting statutory language in a manner that isolates the words from their purpose.
For example, under the law, anyone “physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival … irrespective of such alien’s status, may apply for asylum.” Contrary to almost 50 years of law, regulation and policy, the Trump administration argued that “arrives in” is just another way of saying is “physically present,” which means that as long as a person is stopped before they physically reach the United States, the government has no obligation to allow them to make an asylum claim. Physically preventing people from crossing the border to get to the port of entry, as the Trump administration ordered officials to do, did not violate the law because they were not yet in the United States.
… [It is] clear that Congress intended to protect asylum seekers who were in the process of entering the U.S., regardless of where they stood on its boundaries.
Justice Sonia Sotomayor sought to focus the Court’s attention on the rights of asylum seekers, stressing the obligation the government holds under the law towards refugees. She compared turning away someone without first determining whether they wish to claim asylum to the tragedy of the St. Louis, a passenger ship the U.S. turned away on the eve of World War II, knowing full well that many of the German Jews aboard the boat would be murdered by the Nazis if they returned to Germany. Under that framework, knowledge that someone wants to raise an asylum claim would trigger the statutory and treaty obligations if the individual was physically seeking entry into the U.S.
Most of the justices, however, were more interested in parsing the word “arrives,” debating its temporal and geographic meaning. The justices pointed out that arrives and arriving signal different states of entry. They asked whether arriving at the front door is the same as being inside the house. They queried whether colloquial expressions like “knocking at the door” of the United States captured the essence of the statute, noting that maybe the first person in line might knock at the door, but once that person is turned away, can the 100th person in line really have any expectation of being admitted? And if they can’t expect to be admitted, can they really expect to ask for asylum?
Such questions took the Court further down rabbit holes of statutory interpretation, which at times led them to lose sight of the elaborate interaction between laws governing the admission and inspection process, expedited removal, the credible fear process and asylum. As Corkran kept reminding the justices, reading those laws as a whole makes it clear that Congress intended to protect asylum seekers who were in the process of entering the U.S., regardless of where they stood on its boundaries.
The fact that the justices were more interested in exploring the existential dimensions of arrival than the clear intent of the Trump administration to strip people of their right to claim asylum doesn’t bode well. At a minimum, it’s an example of not seeing the forest for the trees—using statutory interpretation to isolate one element of a law, parsing out the meanings of a single word, but ignoring the very real-life impact of the government’s actions.
In the end, the Trump administration’s motives for the turnback policy received little attention, except from Justices Sotomayor and Ketanji Brown Jackson, who repeatedly pressed the government on why this case, derived from a now defunct policy, should even be before the Court at all.
In Trump v. Barbara, the Court Confronts a Direct Challenge to the 14th Amendment 
People demonstrate outside the U.S. Supreme Court ahead of President Donald Trump’s expected arrival on April 1, 2026. The Supreme Court is hearing oral arguments in Trump v. Barbara to determine if President Trump’s executive order ending birthright citizenship is constitutional. According to historians and the Court, this is the first time a sitting president has attended oral arguments at the nation’s highest court. (Al Drago / Getty Images)
In contrast, virtually all the judges seemed skeptical, if not dumbfounded, by the government’s attempt to justify denying citizenship to children born in the United States based on their parents’ immigration status.
Dr. Michele Goodwin offers a deep dive into these arguments in the Ms. podcast On the Issues with Michele Goodwin, tracing the racist roots of efforts to limit the 14th Amendment, tying the Trump administration to Confederate playbook determined to roll back rights for people of color:
The Court’s awareness of the right under attack was evident, as the justices repeatedly questioned the government on the intent of the 14th Amendment, its historical context, and the very clear evidence that Congress had considered and rejected immigration status as a ground for limiting birthright citizenship. As with “arrives in,” the government sought to focus the Court’s attention on the phrase “under the jurisdiction of” the United States, claiming that nationals of a foreign country who were not citizens or lawful permanent residents held an allegiance to another country, and were not sufficiently tied to the United States to take advantage of the protection of citizenship for their children.
The justices repeatedly rejected the idea that the children were taking advantage of anything, focusing instead on the fact that citizenship is conferred as a matter of right if you are born in the United States, irrespective of who your parents are. They pressed the government as well on the practical implications of denying citizenship to children who knew no other home: What if they became orphans? How would state and local government assess citizenship? What happens to the millions of children already born to parents who were here unlawfully?
Ironically, presence in the United States is ultimately a critical factor in Barbara, but the center of gravity has flipped. Unlike their questions in the asylum turnback case, the justices focused squarely on whether the Constitution confers citizenship to those born in the U.S., rather than how the child came to be born here. Recall that the focus in the asylum case was exactly the opposite, where the “getting here” seemed of greater interest than asylum itself.
The gravity of interpreting an amendment to the constitution forced the Court to look at the lives affected in a way that it did not consider in the asylum case—a stunning reminder that it is more difficult to forget about people’s rights when they are embedded in the Constitution.
What These Cases Reveal About Where Rights Are Most Secure
Between now and June, Supreme Court watchers and oddsmakers will continue to analyze the oral arguments for clues to the ultimate outcome of each case.
But we don’t need to wait for the decisions to recognize two evident truths: The vindication of a right—say, to be protected from discrimination on the basis of sex—can easily be lost when the Court forgets to look at the context and the people involved in the dispute; and the Constitution remains the best vehicle for ensuring that consideration.