By all indications, the Supreme Court is poised to let the Trump administration add a citizenship question to the 2020 census. The consequences of its probable ruling will last longer than Donald Trump’s presidency, well into the term of the next president, and possibly the one after that. Hispanics and immigrants will be undercounted, leading to overrepresentation in the House of Representatives and state legislatures of disproportionately white and rural regions. The result will entrench Republican power into the 2030s, depriving Democrats of representation in Congress and state legislatures, as well as electoral votes. States with large immigrant communities will lose billions in federal funding. Ultimately, the citizenship question is not some wonky dispute about proper census protocol. It is a dispute over who counts in America.
Here is the worst part: The Trump administration should have no legal authority to wreak this havoc. In his opinion blocking the citizenship question, U.S. District Judge Jesse Furman listed six separate ways that the administration violated the law in its effort to rig the census. Yet on Tuesday, the Supreme Court’s conservatives seemed prepared to reverse Furman and let the government include the question. To do so, these justices deployed credulity and hypocrisy in equal measure, abandoning their principles to reach the outcome desired by the Trump administration and the Republican Party. It was a very bad day for truth at the Supreme Court.
The genesis of the citizenship question is a notorious story of blatant deception, one that lay just beneath the surface of Tuesday’s arguments in Department of Commerce v. New York. Commerce Secretary Wilbur Ross, who oversees the Census Bureau, initially claimed that the Department of Justice asked him to add the question so it could better enforce the Voting Rights Act. In reality, however, Ross’ excuse was a lie: He asked the DOJ to send the letter because he wanted a reason to insert the citizenship question. Every expert at the Census Bureau counseled against it; all available data, they told Ross, proved the question would lead Hispanics and immigrants to fear the census. Because many would refuse to participate, the citizenship question would prompt an “undercount” of these groups.
From a legal standpoint, Ross’ behavior is puzzling: The Constitution mandates the “actual enumeration” of people, not citizens; a citizenship question only makes that goal more difficult to accomplish. From a political standpoint, though, the secretary’s behavior is perfectly rational. If Hispanics and immigrants are undercounted, blue states like California will lose billions in federal funds, seats in the House of Representatives, and votes in the Electoral College. Yes, some diverse red states, like Texas, will be affected too. But the burden will fall primarily on urban areas where minorities and noncitizens live—areas, in other words, that lean Democratic. Rural regions populated primarily by whites—that is, Republican regions—won’t suffer. These rural, Republican regions will gain seats in the state legislature, while urban, Democratic areas will lose them.
From the calculus of a pure power grab—constitutional commands be damned—Ross, then, had no reason to listen to the experts who counseled against the citizenship question, and simply overruled them. So he ran roughshod over a series of legal obligations meant to limit the addition of unnecessary questions to the census—rules laid out by Congress, which the secretary ignored. Thus, not only did Ross conceal the real reason for his action, but he also repeatedly broke the law in his mad dash around statutory roadblocks designed to keep gratuitous and counterproductive questions out of the census. (To give two of many examples, Ross missed the deadline to report a new census question in Congress, and failed to comply with a requirement that the secretary exhaust all other options for data gathering before adding “direct inquiries” to the census.)
The liberal justices spent much of Tuesday’s arguments trying to lay bare Ross’ falsehoods. Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan pushed Solicitor General Noel Francisco to acknowledge Ross’ duplicity, with mixed success. “A lot of your argument[s] just do not appear” in Ross’ explanation for his decision, Kagan told Francisco. “And the fact that” lawyers in the solicitor general’s office “can come up with 60 pages of explanation for a decision—that’s all post hoc rationalization—the question is, what did the secretary say? Where did he say it? When did he say it?” Kagan dismissed Ross’ justifications as “conclusory” and “contrived.”
Sotomayor echoed Kagan’s comment. “This seems like [Ross] thought of something,” the justice said. She then channeled Ross: “ ‘I want to add a citizenship question. I don’t know why, but this is a solution in search of a problem. I’ve got to find a problem that fits what I want to do.’ ” And Breyer cited Census Bureau expert John M. Abowd five times to drive home the point that all evidence suggested a citizenship question would impair the “actual enumeration” of people in America.
Then New York Solicitor General Barbara Underwood approached the lectern to argue against the citizenship question—and suddenly, after taking a beating for 35 minutes, the Trump administration’s fortunes turned. Chief Justice John Roberts asked why “it wouldn’t help voting rights enforcement,” since “citizen voting age population is the critical element of voting rights enforcement, and this is getting citizen information.” Justice Brett Kavanaugh then told her that “the United Nations recommends that countries ask a citizenship question on the census. And a number of other countries do it. Spain, Germany, Canada, Australia, Ireland, Mexico ask a citizenship question.”
“The question,” Kavanaugh asked, “is, does that international practice, that U.N. recommendation … affect how we should look at the inclusion of a citizenship question in this case?” He also called Ross’ decision a mere “policy judgment” and asked why the court should halt it in light of conflicting “policy considerations.” Justice Neil Gorsuch also pointed out that “virtually every English-speaking country and a great many others besides ask this question in their censuses.” And Justice Samuel Alito hypothesized why the citizenship question suppressed noncitizens’ responses.
“Citizens and noncitizens differ in a lot of respects other than citizenship,” Alito told Underwood. “They differ in socioeconomic status. They differ in education. They differ in language ability.” Sure, maybe noncitizens are afraid of a citizenship question because they’re afraid of being deported. But maybe they’re also afraid of it for mysterious reasons we can never fully understand!
What’s startling about Roberts, Kavanaugh, and Gorsuch’s questions in particular is that they seem to betray fundamental principles of the court’s conservative bloc. Gorsuch has disclaimed reliance on international law, proclaiming: “We have our own tradition and our own history. And I don’t know why we would look to the experience of other countries rather than to our own when everybody else looks to us.” Kavanaugh, echoing a Republican mantra, has argued that international law has virtually no role in the American legal system outside of treaties. (Even more disturbingly, the two justices seem to have derived their international law questions from an amicus brief filed by Eagle Forum, a fringe reactionary group founded by Phyllis Schlafly.)
Meanwhile, Roberts, who seemed so deeply concerned about the Voting Rights Act on Tuesday, has written and joined opinions gutting it of its force. And deference to executive agencies? Seriously? The contemporary conservative judicial philosophy, touted by Gorsuch and Kavanaugh, is rooted in opposition to agency deference. Yet the conservative justices want to defer to an unelected bureaucrat’s manipulation of the census. A greater hypocrisy is difficult to envision.
To uphold the citizenship question, the court’s conservatives will have to feign respect for the Voting Rights Act, international law, and agency deference—three of their greatest enemies in any other context. In the process, they’ll have to pretend that Ross’ absurd pretexts, his many lies and obfuscations, are believable, even reasonable. And they appear willing to do exactly that to let Ross and Trump have their way. Such a decision would be an embarrassment to the judiciary, evidence that a majority of the justices place the goals of the Republican Party above the truth. A partisan ruling in this case would diminish the court’s legitimacy and fuel support for the addition of more justices. If SCOTUS abandons any pretense of neutrality and throws its weight behind the Trump administration, court packing may come to look like the only sensible option to save democracy from its wayward guardians.