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Notes -
The relevant statutory text uses identical wording to the Constitution, so a sane legal system would find that resolving the statutory issue also resolves the Constitutional one. If Roberts tries to punt by interpreting the US Code one way while reserving the right to interpret the same words in the Constitution a different way, he should be beaten to death with a large hardbacked legal dictionary pour encourager les autres.
That said, the punting opinion does write. Congress passed 8 USC 1401 in 1952 at a time when Wong Kim Ark was good law, so you could claim that Congress intended the Wong Kim Ark meaning of "subject to the jurisdiction thereof" in 1952 even if it intended something else in 1866 when proposing the 14th amendment.
I can't imagine any of the justices except Roberts wanting to punt this one (although I can imagine Roberts sitting on Barrett). So the most likely punting scenario is a controlling concurrence in a 4-4-1 or 4-3-2 mess.
My guess would be that the government loses 8-1 with Alito dissenting.
I do not believe our legal system is sane in that way.
I don't think the Supreme Court itself will punt (except in as much as they'll deny cert); I think the lower courts will explicitly not reach the Constitutional issue, basing their decision on statute (even though the wording is the same), and then the Supreme Court will refuse the case. Maybe if the Fifth Circuit goes rogue SCOTUS will be stuck with it.
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