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Chief Justice Roberts shot down Census citizenship question, but it’s not dead yet

Chief Justice Roberts shot down Census citizenship question, but it’s not dead yet

Dept. of Commerce gets a do-over on its rationale, and may end up back before SCOTUS.

On the morning of June 28, 2012, CNN and Fox News initially told viewers that the Supreme Court had struck down the Affordable Care Act’s individual mandate, not yet realizing that the court had saved it as a tax. Fox’s Shannon Bream declared that the mandate was “gone” and for six minutes a CNN chyron blared, “Individual Mandate Struck Down.”

The Supreme Court’s decision in Department of Commerce v. New York, the census case, was similarly easy to misread at first glance. Although it does keep the citizenship question off the census, at least for now, the majority opinion by Chief Justice John Roberts actually hands the government a clean win on all the substantive issues.

First, the court held that a citizenship question is constitutional, despite being unnecessary to the “enumeration.” Then it said that Wilbur Ross, the commerce secretary, complied with the federal law governing administration of the census. And then the court affirmed that Secretary Ross was allowed to overrule career scientists who advised him to gather citizenship data from administrative records instead of from the census. (The scientists feared that asking the question would cause many immigrants to avoid responding to the census.)

Why, then, did the government lose? The answer, quite simply, is that the court found that Secretary Ross had lied—or more gently, dissembled. Secretary Ross claimed the Justice Department told him that improved citizenship data would help the agency enforce the Voting Rights Act of 1965. It was because of that DOJ request—and only that request—that the question was added, Secretary Ross said. But the chief justice, together with the four-justice liberal bloc, determined that this VRA rationale was a pretext concocted after Ross had already made up his mind. The record, the chief said, showed that the VRA rationale was “contrived.”

The record shows that the Secretary began taking steps to reinstate a citizenship question about a week into his tenure, but it contains no hint that he was considering VRA enforcement in connection with that project…The Director initially attempted to elicit requests for citizenship data from the Department of Homeland Security and DOJ’s Executive Office for Immigration Review, neither of which is responsible for enforcing the VRA…it was not until the Secretary contacted the Attorney General directly that DOJ’s Civil Rights Division expressed interest in acquiring census-based citizenship data to better enforce the VRA.

Because Secretary Ross failed to “offer genuine justifications for [an] important decision[],” the majority affirmed the lower court’s judgment remanding the matter to the Commerce Department.

This question of sincerity was what divided the chief and the other conservatives. Justice Thomas agreed that Ross needed to offer a rational explanation for adding the question but, once satisfied that Ross had done so, he would have declined to evaluate whether his explanation was sincere. “Our only role in this case is to decide whether the Secretary complied with the law and gave a reasoned explanation for his decision,” Justice Thomas wrote, joined by Justices Gorsuch and Kavanaugh. “The Court correctly answers these questions in the affirmative. That ought to end our inquiry.”

But Chief Justice Roberts said that a deeper inquiry was needed because “accepting contrived reasons would defeat the purpose” of judicial review. “Unlike a typical case in which an agency may have both stated and unstated reasons for a decision,” the chief wrote, “here the VRA enforcement rationale—the sole stated reason—seems to have been contrived.” The chief justice sought to strike a balance between the judiciary’s need for honesty and the executive branch’s authority to act politically, and arrived at a compromise: an agency decision may be “influenced by political considerations or prompted by an Administration’s priorities,” but it must also explain itself in a way that is consistent with “what the record reveals about the agency’s priorities and decisionmaking process.” As Jennifer Nou, a University of Chicago law professor, puts it, “you have to tell us the truth, but not the whole truth.”

Secretary Ross’s explanation was a “distraction” that contained no truth, the court concluded.

Justice Alito said he feared that the majority’s standard would invite trial judges to search for pretexts in other cases. “If this case is taken as a model, then any one of the approximately 1,000 district court judges in this country, upon receiving information that a controversial agency decision might have been motivated by some unstated consideration, may order the questioning of Cabinet officers and other high-ranking Executive Branch officials, and the judge may then pass judgment on whether the decision was pretextual,” Justice Alito warned.

The court’s decision sends the case back to the Commerce Department, which, ordinarily, would mean that Secretary Ross gets a do-over: he can issue a new memorandum adding the question and re-litigate.

In this case though, there may not be enough time.

SCOTUS heard this case on an expedited basis because the government claimed that the census questionnaire needed to be finalized by July 1—this Monday. The plaintiffs, ironically, maintained throughout the litigation that, with additional resources, the citizenship question could be added as late as October 31. (Both sides will quickly change their tune, no doubt.)

If the true deadline is October 31, then there is perhaps enough time for Secretary Ross to present a new rationale. We will know soon whether he plans to do so. In a related case in Maryland, Judge George Hazel told the Justice Department yesterday that, if the government wants to avoid more discovery, it must inform him by Monday whether it intends to accept defeat on the question. Judge Hazel is currently probing documents from the hard drives of Dr. Thomas Hofeller, a now-deceased Republican redistricting expert, as part of an investigation into whether Secretary Ross acted with discriminatory intent when he added the question.

Rick Hasen, an election law professor at UC Irvine, says that he doesn’t think the government will back down:

But whatever the reason, the agency will likely act quickly to rehabilitate its pretexual ruling. The agency has said that printing had to begin in July, but plaintiffs challenging inclusion of the question have long claimed the real deadline is October. The government will surely concede now that October is doable. The agency could come back with new reasons, and the part of Roberts’ opinion joined by the conservatives which recognizes the broad agency discretion to include the question for non-pretextual reasons will be front and center.

“So we may see a rare September argument where these issues will be back before the Supreme Court,” Hasen ponders. President Trump said on Twitter that he would direct his lawyers to fight until the bitter end.

Cecilia Wang, a lawyer for the ACLU, said that the remand was “real,” and not just a formality.

Even if there is enough time, it’s not immediately obvious what might qualify as a valid, non-pretextual justification. In a 2016 case, Evenwel v. Abbott, SCOTUS left open the possibility that states could draw some districts on the basis of their citizen population instead of their total population—which is what every state currently uses. And in light of the Hofeller memos, it appears that the administration added the citizenship question so that states would have the data to make exactly that switch. Several states, including Texas, have indicated that they would request citizenship data if it were gathered. (Needless to say, redistricting on the basis of citizens instead of total population would benefit Republicans.)

Commerce could just come clean about all this, minus the part about helping Republicans. One would expect answering a state’s request for improved demographic information to pass the majority’s test, even if unstated partisan motivations lie underneath. On the other hand, the government needs a rationale that not only is “real” but is also consistent with applicable law, which obviously doesn’t contemplate modifying the census for partisan gain.

In the end, if the administration really wants this question on the census, it will have to return to the Supreme Court. There is zero chance that the government will win all of the lower court fights. And when and if it does return, the fate of the citizenship question will again be up to the court’s chief justice and now kingmaker.


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print the census with the question on it, and let that coward in a black dress try and stop it.

Trump needs to channel his inner Andrew Jackson.

Is the citizenship question of any significance other than SJW politics? People will lie or not answer and, IIRC, Congressional apportionment, Federal funds distribution, etc. are based on “Persons” not Citizens residing in….

    artichoke in reply to SHV. | June 30, 2019 at 12:35 pm

    The government already gave one reason: it would help with enforcement of the Voting Rights Act. Whether that was or was not the first thought in Ross’ head, it’s a reason.

    We don’t invalidate a mathematical proof because we accuse the writer of not having thought of it as his very first idea. We allow trial and error and judge the result more than the process.

      SHV in reply to artichoke. | June 30, 2019 at 1:04 pm

      I agree that the citizenship question should be included, however, In the context of SCOTUS/Roberts, kicking the citizenship question back to lower courts is of little consequence compared to removing the Federal Courts from drawing congressional districts. IMO, that is a big deal.

rabid wombat | June 30, 2019 at 12:19 pm

“Our only role in this case is to decide whether the Secretary complied with the law and gave a reasoned explanation for his decision,” Justice Thomas wrote, joined by Justices Gorsuch and Kavanaugh. “The Court correctly answers these questions in the affirmative. That ought to end our inquiry.”


How about “because we’ve done it that way for decades” and it therefore meets with common expectation. Seems reasonable to me. Let SCOTUS say that common expectation (as judged by the administration; it doesn’t have to be proven) is discriminatory.

The part about psychoanalyzing the decision maker is very disturbing. Federal judges might indeed start issuing their nationwide injunctions on that basis, as well as all the other made-up nonsense they use now.

Any justice that would concur in that idea, all five of them, are dishonest and untrustworthy. You can’t care about the people of this country and create such a precedent — or even allow it to stand.

This issue is more important now than the census. It’s a real danger to everything.

We really need another justice on SCOTUS to overturn that whole thing, not just for the census but to take on and disallow that reasoning explicitly. Has anyone actually seen Ginsburg in a long time?

    Remember the initial strikedown of Trump’s travel restriction order? Judges have already invalidated perfectly legal actions on the basis of, “We all know he’s a racist so this had to be a racist order.”

    Roberts has helped give it SCOTUS support.

    artichoke in reply to artichoke. | July 1, 2019 at 11:07 pm

    I’ve thought a little more about this … and I may have changed my mind.

    In another 5 1/2 years, Trump will be gone, the Dems will probably own Texas, and the Republicans may never again have any governing control of anything here.

    But we will have our judges in place. 🙂

    So for the long term, we WANT to keep a precedent that allows judges to psychoanalyze and kneecap the government whenever it thinks the status quo is being pushed the wrong way.

    We don’t want to fix the system just in time for them to benefit from it and remove our own opportunity to use their tactics.

      artichoke in reply to artichoke. | July 2, 2019 at 9:38 pm

      According to LA Times (paywall) Trump admin. is dropping its effort to add the census question.

      So I can’t be sure of the reason, but maybe they don’t want to touch that precedent, and are willing to give up the less important census question to keep it firmly intact.

The idea the court has any say in the census is absurd. It is clearly solely an executive function. The court’s sole authority would lie in the adjudication of a citizen that refused to answer a question (it is a misdemeanor…which I don’t think has ever been prosecuted. But I have had business clients threatened).

    walls in reply to puhiawa. | June 30, 2019 at 12:59 pm

    Who the hell is Roberts to question motive? If it’s legal, it’s legal, and it’s been on the census for decades previously. What I want to know is why the gubmint needs to know how many bathrooms I have. Why? Are they going to implement a bathroom tax?

    This is THE hill to die on. We can’t wait for inclusion on the 2030 census. Delay the census if necessary. Just don’t send it out. Let the progs get their underwear in a wad.

      artichoke in reply to walls. | June 30, 2019 at 1:30 pm

      Roberts, Breyer, Kagan, Sotomayor and Ginsburg, all of them are pushing for the establishment of a judicial inquisition in our country.

      Titan28 in reply to walls. | June 30, 2019 at 1:50 pm

      Walls, Exactly! Motive? Judges are now going to start plumbing motive in cases like this? How about real estate law? This is madness! Roberts is a political tool. He’s starting to remind me of that other DC moralizer, James Earl Carter, Jr.

“But Chief Justice Roberts said that a deeper inquiry was needed because “accepting contrived reasons would defeat the purpose” of judicial review.”

Where did Roberts get his law degree? What, exactly did he think that the SCOTUS was doing in this case? The whole purpose of hearing this case was to provide JUDICIAL REVIEW. After applying said judicial review, it was found that Ross, and the DoC had acted legally and constitutionally. Here that? That is the sound of the fat lady singing. Yet, because this yahoo justice believes that the stated reason for including the citizenship question was not the only or original reason for wanting to include it, this somehow requires that the case be heard again. And, it sends a signal to the lower court that, no matter how legal a person’s actions may be, if the court does not “believe” him to be telling the whole truth, even though the information withheld would have no material affect on the legality of the action, the action can be blocked.

A court can charge a person with perjury, for lying to the court or under oath in an official proceeding. It find the in contempt of court for the same. It is free to verbally castigate the person for lying in the matter. But, a court can not find that the actions, undertaken by that person, were legal whether that person lied or not and then block that action. The action is either legal or not, period!

This is what happens when politics becomes ascendant over legal decision making in jurisprudence. This was a clearly political decision, on the part of the majority of the court. The majority of the court had determined that a means of blocking the inclusion of the census question was to be found before they ever heard the case. So a reasonable excuse was contrived to allow this. Sounds a little like their argument for sending the case back to the lower court, doesn’t it. However, in the case of Ross, his reason was viable on its face, regardless of whether it was the original reason or not. This made Ross’s actions both legal and constitutional, something which the decision of the Court lacked. Every time one of these legally deficient decisions comes out, the prestige and authority of the court diminishes. Someday, it will reach the point where people will simply ignore it altogether.

I seem to recall a lot of improper motives behind the scene in the Obamacare legislation. Didn’t bother John Roberts that time.

This guy lost all credibility after his obamacare sell-out.

And he did sell-out.

Dread Pirate Roberts?

Chief Jester Roberts, offended by President Trump’s Obama judges remarks, responds: so there!

Subotai Bahadur | June 30, 2019 at 5:31 pm

OK, let us say that Roberts and the other Leftists get their way and the questions are not on the 2020 Census and are held for the 2030 Census.

Does anyone actually believe that there will be a 2030 Census? With more fraudulent Leftist votes than real ones cast on both sides, the Constitution as written will be long gone. If we are lucky, we will have fought out another, different, Social Contract that works. If we are not lucky, we will have ended up with another, different Social Contract that does not work. Or we will still be fighting.

It is worth defying the Supreme Court and including the question in an effort to have a small chance at resolving things non-kinetically.

Subotai Bahadur

    Yes this is the plan. Count the illegals, have them illegally vote, give the districts in which they live more seats in Congress, and more electoral votes.

    There’s your foreign interference in our “Democracy”.

      redc1c4 in reply to CDR D. | June 30, 2019 at 6:52 pm

      that which cannot go on, won’t.

      and if the soap box (big tech censorship) and the voting box (election fraud/illegals/etc) don’t w*rk, all that’s left is the cartridge box, and we really don’t want that.

      on the upside, if they go there again, the Demonrats will lose this one too, and it will be bloodier than the first one was.

One more time, Roberts is a crooked commie put on the court by GWB, and not his first choice.

There is no political solution. Only time can fix this, time for more justices to retire or die. Right now I’m starting to prefer the latter.

I find the idea that illegals won’t just lie on inconvenient questions to be downright hilarious.

Not so hilarious is that SCOTUS now takes it upon itself to be the Thought Police. Suitably “pure” thoughts only to be allowed in future.

A portion of the punditosphere devotes much effort to watching the careers of judges. And these judiciopundits serve a useful function in recommending SCOTUS nominations to presidents such as DJT who don’t personally devote themselves to that hobby.

So, did any judiciopundit predict that Roberts would turn out be such a puffed-up douchenozzle? If so, maybe we should pay some serious attention to such a paragon in future.

Does this now provide a basis to invalidate the obviously pretextual congressional requests for Trump’s tax returns, etc?

John Roberts dropped his drawers and bent over on
Obolo care.

I find myself wondering, given how contrived the ruling itself seems to be, should we not consider this ruling to be insincere by its own standard? Is it not true that this ruling, with its own convolution and miss-statement of the Justices’ motives fall under it’s own judgement?

If sincerity is to be our guidepost, shall we not invalidate the insincere ruling that planted it?

It does seem to be Pandora’s own box to try and judge the law by the heart of the law maker rather than by the face of the law.