Jurisprudence

The President vs. the Chief Justice

Will Roberts let Trump get away with adding a citizenship question to the census?

Donald Trump, John Roberts.
President Donald Trump and Chief Justice John Roberts.
Photo illustration by Slate. Photos by Mark Wilson/Getty Images and Chip Somodevilla/Getty Images.

In October, the Atlantic’s Adam Serwer coined what has become the defining phrase of the Trump presidency: “The cruelty is the point.” Those words have been cited to describe the growing national torpor around atrocities taking place at the Southern border, the president’s frightening embrace of autocratic murderers, the decline in public civility, and the rise of vicious tribalism. In so many ways, the cruelty is driving all of it. But there’s another factor at play here, one that’s proceeding on a parallel track. Along with the coarsening and “othering” that mark Donald Trump’s every move, there’s also a compulsion to transform that which was once serious and dignified into small, silly tragicomedy.

Witness what Trump has made of the Supreme Court. The court is an august institution, one that’s drunk, to be sure, on its share of self-congratulatory mythology, but also capable of inspiring awe and reverence for the law and the Constitution and the virtues of logic and civility. Yet within a week of suffering his first major loss at the high court, Trump has turned two centuries of elevated legal thought and studied institutional understatement into a constitutional reality show.

In spite of the Supreme Court’s 5–4 decision to prevent a citizenship question from appearing on the 2020 census, and despite the assertions of his own commerce secretary, Wilbur Ross, as well as formal legal promises from his own Department of Justice, Trump has decided he wants to proceed with the question anyhow. With that move, the president has turned the Trump administration’s embarrassing flirtation with deception and incompetence into a standoff between two men. It’s now down to the president vs. the chief justice in a cage match of democratic will. To put it another way: Will John Roberts allow Donald Trump to do again what he did in the travel ban case, laundering a terrible idea so it’s just clean enough to take at face value?

In some ways, Roberts brought this upon himself with his split-the-baby opinion, finding both that Ross had constitutional and statutory authority to add the citizenship question but also that, er, no, all the lying about it would not do. As the court’s lone swing voter, Roberts gave himself sole authority to determine if and when the taint of Ross’ lying could be cleansed. Some observers believed that stain could never be removed, no matter how hard Trump’s cronies scrubbed, and that the administration would stand down, admit defeat, and move on to other priorities. Other smart people, among them Joshua Matz and Slate contributor Rick Hasen, argued that the president could still cure the defects of his first attempt, making a new argument that would pass muster. Finally, into the chasm between those two camps lies credible speculation, like that of Linda Greenhouse, that Roberts may have switched sides at the last minute, as he did in the first Affordable Care Act case. Perhaps the chief had a “dark night of the soul” and sided against the transparent (and racially motivated) lying by the commerce secretary. If that was so, the only lingering question would be whether the swing justice could swing back in time to get the question printed on the 2020 census.

Last week, Mark Joseph Stern and I summed up the chief justice’s decision as a vote for the appearance of gravitas and reason in the midst of an Abbott and Costello effort by Ross and GOP loyalists to rig future elections. “At moments of greatest political turmoil,” we wrote, “when the court is in the crosshairs because governmental bad behavior or Trumpian bungling puts it there, Roberts will take public sentiment into account and modulate the uproar.” We both believed that this would be the last word on the census case, as, apparently, did the Department of Commerce and the Department of Justice, which represented to Judge George J. Hazel that the census had gone to the printers without a citizenship question.

But Wednesday afternoon, in one of the most humiliating performances ever by government lawyers before a federal judge, Trump’s attorneys admitted that they had absolutely no idea why the president had reopened the case via tweet—“The News Reports about the Department of Commerce dropping its quest to put the Citizenship Question on the Census is incorrect or, to state it differently, FAKE!” Trump wrote—or what the plan was. “The tweet this morning was the first I had heard of the president’s position on this issue, just like the plaintiffs and Your Honor,” DOJ special counsel Joshua Gardner told Hazel in a rushed telephone conference. Gardner implored Hazel not to tag him as dishonest, saying, “What I told the Court yesterday was absolutely my best understanding of the state of affairs and, apparently, also the Commerce Department’s state of affairs.”

The more telling exchanges in that phone conference came from the plaintiffs, representing communities that remain panic-stricken at the prospect of immigration raids. In an interview last week, Trump said, “I think it’s very important to find out if somebody is a citizen as opposed to an illegal”—a seeming indication that the real rationale for the citizenship question was to take further action against undocumented immigrants. He has since confirmed that this is his real goal—a goal explicitly disavowed in the census arguments. That boast led attorneys to ask the judge to prohibit Trump from terrorizing immigrant communities. Denise Hulett of the Mexican American Legal Defense and Educational Fund put it this way in Wednesday’s teleconference:

The President’s tweet has some of the same effects that the addition of the question would in the first place and some of the same effects on the 18-month battle that was just waged over the citizenship question. It leaves the immigrant communities to believe that the Government is still after information that could endanger them. If you add that to the interview that the President did, sharing that his reason for wanting the citizenship question on the form was so that the Government could distinguish between citizens and illegal aliens and how nonsensical that is, it has the effect of leading the public to believe that the Census is not only after that information but is willing to violate some of the provinces of protection that our plaintiff organizations have been trying to reassure communities about.

What Hulett was saying is what everyone now knows: In some respects, the damage is already done. Whether or not the citizenship question ultimately appears on the census, Trump has managed to intimidate immigrants out of participating in democracy.
And as Hulett noted Wednesday afternoon, immigrants take the president’s tweets seriously and understand that their purpose is to threaten them. Threats of new raids exacerbate their concerns. Hazel’s response was inevitable: “I assume, although maybe I’m wrong about this, that the parties aren’t suggesting I can enjoin the President of the United States from tweeting things.”

When the case comes back to the high court, it rests with Roberts alone to put a definitive stop to the practice of using the census to terrorize noncitizens. It would mean refusing to accept the next fake pretext as a defensible one. It would require Roberts to put to rest the “presumption of regularity.” Even DOJ lawyers have abandoned the pretense that the president is magisterial and learned and should be treated as such in the courts. Now they simply scramble around in his wake, emptying his dirty ashtrays and pretending that stirring up fear and trauma while mobilizing a base isn’t his main goal. Hazel can do nothing to stop that, as he acknowledged. Roberts still can.

Roberts could, at minimum, put an end to this presidential temper tantrum, by slamming the door definitively on efforts to work around the court’s ruling. Whether he wants to do that remains anybody’s guess. And that it has come to this is just sad. The mixed signaling from Roberts’ opinion around whether the administration can still cure the pretextual reasoning surely emboldened the president.

That Trump is now reportedly considering putting the citizenship question back onto the census by way of an executive order is a natural reaction to Roberts’ compromise resolution. It’s a shockingly aggressive move that seems doomed to fail, but do read it for what it really is: Trump is threatening the chief justice, claiming for himself absolute authority to overrule the court. The Washington Post is telling us that Trump’s advisers don’t want him to back down, so his government lawyers spent the Fourth of July building better pretexts.

And so now it seems Trump will have his season finale smackdown with the chief, the man he has never forgiven for his vote in the Obamacare cases. And Roberts, who probably believed he had settled this issue last week, must now decide, again, whether it’s worth his while to let the circus clown tear down the institution he prizes above all things. It’s lose-lose for the chief justice, win-win for the president, and a boon for ratings all around.