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The Trump Case That Will Test the Supreme Court’s Newest Originalist

The president wants to exclude noncitizens from the census, in clear violation of the Constitution. Where does Amy Coney Barrett stand?

Tom Williams/Pool/Getty Images

The Constitution is a remarkably vague document, and American courts have spent the last two hundred years trying to make it more specific. What counts as “cruel and unusual punishment,” either in 1789 or in 2020? What makes a search and seizure “unreasonable” when carried out by police? When does a person deprived of life, liberty, or property actually receive “due process under law”? Sometimes, the answers in these cases can be harder to find than they might seem.

Trump v. New York is not one of those cases. If anything, it might even be one of the easiest cases taken up by the Supreme Court in recent memory. Every 10 years, the Constitution requires the federal government to conduct a census that counts “the whole number of persons” in the United States. In July, President Trump issued an order to exclude undocumented immigrants from the census results that are sent to Congress to reapportion House seats, even though the Constitution clearly requires their inclusion. A special three-judge federal panel in New York unanimously ruled against Trump earlier this year.

Last Friday, the Supreme Court scheduled oral arguments for the case on November 30, making it virtually certain that Judge Amy Coney Barrett, whose confirmation to replace the late Justice Ruth Bader Ginsburg is expected within a week, will be part of the deliberations and the result. Conservative legal scholars have long insisted, to plenty of liberal skepticism, that the judicial theory of originalism, which aims to interpret the Constitution based on its meaning at the time of adoption, is more than a means to produce right-wing outcomes in the courts. “It’s not the law of Amy, it’s the law of the American people,” Barrett explained in her confirmation hearing last week. “And I think originalism and textualism, to me, boil down to that, to a commitment to the rule of law, to not disturbing or changing or updating or adjusting in line with my own policy preferences what that law required.”

If that’s true, then Trump v. New York may be the first opportunity for a Justice Barrett to prove critics wrong about the motivations of conservative originalists—by roundly rejecting the president’s argument. Because any honest originalist would acknowledge that the Constitution’s meaning on the matter—at the time of its adoption, and after subsequent amendments, and today—is crystal clear.

The census itself is a complex effort to answer a simple question: How many people are in the United States? The Constitution’s original text was fairly clear on how the process must work. “Representatives and direct Taxes shall be apportioned among the several States … according to their respective Numbers,” reads the provision in Article 1. Those numbers must be calculated, it stated, “by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.”

In other words, count everyone, then subtract two-fifths of slaves and most Native Americans for apportionment. Several years after slavery’s abolition in 1865, the Fourteenth Amendment simplified the formula even further. “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” That final exception was itself eliminated in 1924 when Congress extended citizenship (and taxation along with it) to every Native American in the country. Now the “whole number of persons” really means the “whole number of persons.”

In his July order, however, Trump argued that undocumented immigrants shouldn’t be included in the decennial count. “Excluding these illegal aliens from the apportionment base is more consonant with the principles of representative democracy underpinning our system of Government,” he claimed. “Affording congressional representation, and therefore formal political influence, to States on account of the presence within their borders of aliens who have not followed the steps to secure a lawful immigration status under our laws undermines those principles.” The order singled out California, claiming it would get two to three more representatives unless its numbers were adjusted.

Trump’s order still requires Secretary of Commerce Wilbur Ross to compile the census as intended, but it also instructs him to present a second set of numbers for the states without undocumented immigrants. A coalition of states and civil rights organizations sued the Trump administration in federal court days later, arguing that federal law requires the president to present one set of numbers to Congress and that those numbers must include everyone. A federal three-judge panel in New York agreed, unanimously rejecting Trump’s efforts to change the apportionment of House seats.

In its ruling, the panel specifically noted that there was no way lawfully to produce the numbers Trump wanted. “The presidential memorandum leaves it to [Ross] how to come up with those figures, but they will necessarily be derived from something other than the census itself, as the 2020 census is not gathering information concerning citizenship or immigration status, and the 2020 census is counting illegal aliens,” the panel wrote. “By doing so, the presidential memorandum violates Congress’s mandate to use the results of the census—and only the results of the census—in connection with the apportionment process and the counting of them pursuant the Residence Rule.”

This is not the first time that the Trump administration has tried to manipulate the census for Republican gain. In 2018, Ross tried to add a citizenship question to the list of queries asked of every American citizen, despite internal and external warnings that it would reduce the accuracy of the count. Critics warned that the reduction looked like a deliberate attempt to dissuade legal and undocumented immigrants alike from completing the census—a move that would, in turn, bolster white Americans’ political power even further for at least a decade. Last year, the Supreme Court narrowly effectively blocked the question after finding the administration’s stated reason for adding it—enforcing the Voting Rights Act of 1965—to be dubious at best.

What does it mean that the justices decided to review the panel’s decision in this case? Not much. Generally speaking, the court’s members have discretion over whether they hear a specific case or not. But federal law allows cases involving reapportionment to take place before a three-judge panel at a federal district court and then be sent directly to the Supreme Court for review, where it can’t be ignored. Though the justices have the option to summarily uphold or overturn the panel’s decision, they did not utilize it here. That leaves observers with less information about the justices’ intentions in this case than normal.

Some of the Supreme Court’s conservative justices have managed to part ways with conservative policy preferences at times. Earlier this year, Justice Neil Gorsuch wrote the majority opinion in Bostock v. Clayton County to find that Title VII of the 1964 Civil Rights Act bans workplace discrimination against gay and lesbian Americans. His ruling on textualist grounds still drew sharp criticism from the American legal right, which apparently expected him not to use that method of interpretation to reach outcomes with which it strongly disagrees. Like his predecessor Antonin Scalia, Gorsuch also occasionally joins the liberal bloc in Fourth Amendment cases where the amendment’s original meaning ranks higher than law enforcement’s desires.

Such divergences are sparsely found among the Supreme Court’s committed originalists, however. Will Trump v. New York be one of them? We’ll learn soon enough whether the court’s conservative bloc, and particularly its newest member, cares more about adhering to its professed judicial philosophy or preserving the right’s minority rule.