The Supreme Court will soon decide whether the Trump administration can include a question about citizenship on the 2020 census.

It might seem strange that such a matter is before the Supreme Court at all. But when the Trump administration explored adding the question it was not…especially solicitous, shall we say, about following administrative law. Nevertheless, the government argues that it is entitled to significant deference on how to best design the census and, after the oral argument in April, most observers got the impression that the five conservative justices agreed. 

Here’s the background: In March 2018, Commerce Secretary Wilbur Ross sought to add a citizenship question to the 2020 census. He claimed to be responding to DOJ officials who told him that citizenship data would help them enforce the Voting Rights Act (VRA). Blue states and various advocacy groups filed suit, alleging that the VRA rationale was a pretext. Ross’s real motivation, they said, was to deter immigrants from responding to the census, which could cost Democratic constituencies federal benefits and seats in the House.

Evidence presented at trial suggests that the DOJ request did not arise independently, but was actually solicited by Ross. This matters because in an Administrative Procedure Act case like this one, the plaintiffs don’t have to show that there is no legitimate reason to ask about citizenship. They need only impeach Ross’s reasons for asking about it. Federal judges in three separate lawsuits concluded that the VRA rationale was contrived and ordered the question removed. Because the Census Bureau needs to start printing the questionnaires over the summer, the Supreme Court agreed to hear an expedited appeal, with a decision to be rendered by the end of this month. 

It certainly appears that the plaintiffs expect to lose, whatever the merits of their arguments. Nothing but the expectation of defeat could possibly explain what drove them last Thursday to file a scorched-earth motion for sanctions against the government.

The motion, styled as a letter to the trial judge in Manhattan, alleges that two key government witnesses lied about the role of Thomas Hofeller, a now-deceased Republican redistricting expert, in getting the question added. The plaintiffs also claim that the officials—then-Acting Assistant Attorney General John M. Gore and Ross adviser A. Mark Neuman—lied about the internal process that produced the DOJ’s request for the citizenship question. The allegations feel like nitpicking: see the below thread by one of the lawyers in the case. 

They’re basically saying that Neuman failed to disclose that he gave Gore a draft of the DOJ letter one year earlier, despite the fact that they never specifically asked Neuman about that letter and the government produced it in full in discovery. That’s the Grand Deception that the plaintiffs want the government sanctioned over.

Less than an hour after the plaintiffs’ letter was filed, The New York Times dropped an in-depth story about the Hofeller revelations. 

The gist of the NYT story is as follows: Thomas Hofeller was a legendary Republican mapmaker who died in August 2018. Recently, his estranged daughter shared his computer files with a law firm representing the plaintiffs. The files revealed that Hofeller wrote an early draft of the DOJ letter that asked Commerce to add the question. What’s more, it turns out that Hofeller also authored a 2015 study that explored redistricting on the basis of eligible voters instead of total population. Such a switch would, in Hofeller’s words, “be advantageous to Republicans and Non-Hispanic Whites.” But there was a major problem: there existed no citizenship dataset that courts would permit to be used in redistricting. The solution, Hofeller advised, was to gather citizenship data on the 2020 census. The plaintiffs believe that these discoveries are important because they directly link the citizenship question to partisan motivations.

Leaving aside the fact that Hofeller’s involvement, even if it is being accurately characterized, does not shed light on Ross’s motives, this “new evidence” is not even in the record, and it’s likely too late to admit it. So what exactly do the plaintiffs hope to accomplish? The WSJ Editorial Board beat me to the punch.

The real goal of flogging the Hofeller memo now is to raise enough of a political stink to intimidate the Supreme Court to block the citizenship question. “Will the Legitimacy of the Supreme Court Survive the Census Case?” asked an op-ed in the New York Times. Whenever you read “legitimacy” in a sentence about the Court, you know it’s a political missile aimed directly at Chief Justice John Roberts.

But after the government’s response Monday night, the missile appears to have misfired. Here are some crucial points from the response:

Also the product of Plaintiffs’ own deposition decisions is Neuman’s alleged failure to inform Plaintiffs of Hofeller’s purported role in drafting the Neuman Letter. Neuman was discussing the letter’s authorship when the questioner cut him off: “I don’t—I don’t want—I’m not asking you to tell me about who the original author was or anything.” It is quite rich for Plaintiffs to now complain about Neuman’s failing to tell them something he was instructed not to tell them. And Plaintiffs did not lack for opportunity; Neuman testified at length about Hofeller and the discussions they had about redistricting and the census.

Gore, it is true, did not testify that Neuman gave him a draft of the Neuman Letter. But that is because Plaintiffs did not ask him about it. Gore disclosed that he talked to Neuman while drafting the Gary Letter…Perhaps more important, Plaintiffs have long known that Gore had the Neuman Letter. The government produced the Neuman Letter in full in discovery. In the cover email to Plaintiffs’ counsel, the government expressly said: “These materials were collected from John Gore” “in hard copy.” Accordingly, Plaintiffs have known since at least October 23, 2018, that Gore had the Neuman Letter—which belies their repeated claims that they learned that fact only recently. It is thus unclear how Plaintiffs could have been misled by Gore’s failure to tell them something they (1) did not ask him and (2) have known since last October. Plaintiffs’ obliviousness is not a valid basis to sanction the government.

At least on first glance, these are pretty decent defenses. Yet based on how the entire census story has developed, you’d think it was indisputable fact that the administration had lied.

Ever since oral argument, important opinion-makers have suggested that the administration’s deception is so damning that a ruling for the government would prove that the Court has been corrupted and politicized. Its very legitimacy—gasp—would “erode,” in the words of former AG Eric Holder. 

“For the sake of its own legitimacy,” Georgetown professor Joshua Geltzer advises, “the court must…avoid getting snookered by Trump’s lawyers.” Slate’s Mark Joseph Stern says that a “partisan ruling in this case”—i.e. the government winning—”would diminish the court’s legitimacy and fuel support for the addition of more justices.” Jessica Levinson, a professor at Loyola Law School, invokes the cliche of “politicians in robes.”

This is looking less and less like an ideological battle between conservative and liberal judges and more like a Supreme Court controlled by partisan politicians in robes. And the census ruling could prove it.

Ryan Cooper at The Week argues that allowing the question would “further erode the legitimacy of the court” and “[strengthen] calls from Democrats to enlarge its size as soon as they regain power.”

This all sounds familiar to people who remember how many media reports claimed that, in response to external pressure, Chief Justice John Roberts flipped his vote on Obamacare in 2012.

Whatever the truth of those stories, they are evidently the inspiration for those staking the Court’s legitimacy on the census case. However, the new evidence really doesn’t seem substantial enough to get any of the Justices to change their votes. So while it is generally pointless to speculate about the internal dynamics of the Court, it is unlikely that the outcome of this case will be influenced by these eleventh-hour allegations.

 
 
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