More than two centuries ago, the Constitution’s Framers decided the United States would be the first nation to make a count of all persons an important method of ensuring a democracy. Sadly, this history was barely acknowledged at Tuesday’s oral argument in Department of Commerce v. New York, which involves a challenge to Commerce Secretary Wilbur Ross’ decision to add a citizenship question to the 2020 census, a change that would skew the headcount mandated by our foundational charter. On Tuesday, the Constitution was missing in action.
The court’s conservative justices, echoing last term’s 5–4 decision upholding President Donald Trump’s travel ban, suggested in their questioning that they should defer to the secretary’s decision to add a citizenship question to the 2020 census, notwithstanding Ross’ blatant manipulation of the administrative process. Solicitor General Noel Francisco argued that this was a policy judgment based on weighing costs and benefits, which should be left to the secretary. “You’re always trading off information and accuracy,” Francisco insisted. Courts, the solicitor general seemed to argue, have no business interfering.
By and large, the court’s conservative justices seemed willing to accept this argument. As Justice Brett Kavanaugh commented near the end of the argument, “assuming there’s review … it’s deferential.” He also noted, “the question I think here is a policy judgment that it’s more important to get accurate citizenship information even at the expense, potentially, of a slight decrease, potentially, in response rates.” Meanwhile, Chief Justice John Roberts, who led the court to mandate that preclearance was no longer necessary to curb voting discrimination in Shelby County v. Holder, seemed willing to swallow the lie that the citizenship question would help enforce the Voting Rights Act he had previously dismantled. “[The] Citizen Voting Age Population, is the critical element in voting rights enforcement, and this is getting citizen information,” Roberts insisted. Finally, Justice Samuel Alito spent much of the morning seeking to second-guess the Census Bureau’s determination that adding the citizenship question would gratuitously harm the integrity of the count itself, the actual purpose of the census as outlined in the Constitution.
As these questions suggest, the court’s conservative wing seemed to treat the constitutional obligation to count all persons as a policy preference, one that could be balanced away against other objectives. If the Trump administration wanted to prioritize getting citizenship information—even though the census has never asked all persons to report their citizenship status since the passage of the Voting Rights Act—this was, they suggested, a policy matter of weighing costs and benefits. The court’s conservative wing disregarded the fact that both the original Constitution and the 14th Amendment require counting all persons—citizens and noncitizens alike. The court’s conservative wing also turned a blind eye to the Framers’ explicit choice to require counting all persons, no matter where they are from and no matter their citizenship status. As the Constitution’s text, history, and values mandate, the “whole immigrant population should be numbered with the people, and counted with them.”
This is not a mere policy preference but a hard and fast constitutional requirement necessary to ensure equal representation for all. As Justice Sonia Sotomayor insisted, the court was being asked to balance away the obligation to count all persons—the “actual Enumeration” required by the Constitution. As Sotomayor observed, “The enumeration is how many people reside here, not how many are citizens. That’s what the census survey is supposed to figure out.”
And the court’s more liberal justices urged a careful review of the record to ensure that Ross did not undermine the accuracy of the constitutionally mandated count of all persons. Justice Stephen Breyer focused on the Census Act’s requirement to use administrative records to the maximum extent possible rather than adding a new question to the census, a statutory mandate Ross never mentioned in approving a citizenship question. As Breyer insisted, the statute’s mandate was clear: “Don’t ask direct questions. Use administrative records, because they want to keep it short.” Meanwhile, Justice Elena Kagan emphasized that Ross has failed to give a good reason for discarding the Census Bureau’s expert judgment that the way to gather the most accurate citizenship data was through administrative records. “[T]he Secretary needs reasons to do that, and I searched the record and I don’t see any reason,” she noted.
But these arguments did not seem to convince any of the court’s conservative justices, even those who have consistently urged stricter policing of administrative agencies in other contexts. When it comes to the Trump administration, the conservatives’ consistent message unfortunately appears to be defer, defer, defer.
If the court ultimately upholds the addition of the citizenship question, it will be yet another decision from the Roberts court that undermines the Constitution’s democratic promise. Under the chief justice’s watch, the court has made it easier for corporations and the wealthy to spend unlimited amounts of money on political campaigns, while making it harder for citizens to exercise their fundamental right to vote. The Roberts court struck down the most important and successful part of the Voting Rights Act, opening the door to waves of racial voter suppression.
Now, in the name of better Voting Rights Act enforcement, five of the court’s justices seem poised to undermine the integrity of the 2020 census and greenlight blatant manipulation of the administrative process.
The arguments in Department of Commerce v. New York are technical, but how the justices resolve them will shape, in powerful ways, the legacy of the Roberts court. If the court’s conservatives continue to bend over backward to defer to the Trump administration, it will diminish the court’s role as a check on abuse of power, harm the integrity of the court, and breed further cynicism. That’s the last thing Roberts should want.
Disclosure: The author co-wrote an amicus brief in this case for the Constitutional Accountability Center on behalf of current members of Congress and a group of bipartisan former members of Congress.