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The Supreme Court Isn’t as Naïve as Trump Hoped The Supreme Court Isn’t as Naïve as Trump Hoped
(about 13 hours later)
The Supreme Court affirmed a basic rule of the operation of government on Thursday: Federal agencies have to give believable reasons for the actions they take. The justices applied that rule to stop the Trump administration, at least for now, from wrecking the 2020 census.The Supreme Court affirmed a basic rule of the operation of government on Thursday: Federal agencies have to give believable reasons for the actions they take. The justices applied that rule to stop the Trump administration, at least for now, from wrecking the 2020 census.
The decision in Department of Commerce v. New York shouldn’t be seen as a surprising and hugely heartening outcome. It should be seen for what it is: the obvious result, in light of the Trump administration’s seemingly “contrived” rationale, as the court put it, for adding a citizenship question to next year’s census. But when the case was argued before the court in April, all five of the court’s conservative justices seemed ready to give the Trump administration a pass.The decision in Department of Commerce v. New York shouldn’t be seen as a surprising and hugely heartening outcome. It should be seen for what it is: the obvious result, in light of the Trump administration’s seemingly “contrived” rationale, as the court put it, for adding a citizenship question to next year’s census. But when the case was argued before the court in April, all five of the court’s conservative justices seemed ready to give the Trump administration a pass.
Chief Justice John Roberts then shrugged off demographic questions on the census as being “quite common” (true in general but not for citizenship) and seemed to accept the administration’s claim that “getting citizenship information” through the census would help enforce the Voting Rights Act. Never mind that the government’s own experts had warned that asking the question would scare away immigrants from participating, and could result in an undercount of more than six million people that could reduce federal funds to the cities they live in as well as the number of Democrats in Congress.Chief Justice John Roberts then shrugged off demographic questions on the census as being “quite common” (true in general but not for citizenship) and seemed to accept the administration’s claim that “getting citizenship information” through the census would help enforce the Voting Rights Act. Never mind that the government’s own experts had warned that asking the question would scare away immigrants from participating, and could result in an undercount of more than six million people that could reduce federal funds to the cities they live in as well as the number of Democrats in Congress.
But somewhere along the way, the chief justice appears to have come to see the record differently, and that made all the difference.But somewhere along the way, the chief justice appears to have come to see the record differently, and that made all the difference.
For the key section of Chief Justice Roberts’ majority opinion, Part V, he had only the support of the court’s four liberal justices. He wasn’t doing anything fancy, just setting out the evidence about Secretary of Commerce Wilbur Ross’s decision-making process. Mr. Ross had testified to Congress in March that he added the citizenship question “solely” because the Justice Department “initiated the request” for the purpose of enforcing the Voting Rights Act, which relies on survey data the Census Bureau collects. But his emails and other materials showed a “significant mismatch between the decision the secretary made and the rationale he provided,” Mr. Roberts wrote.For the key section of Chief Justice Roberts’ majority opinion, Part V, he had only the support of the court’s four liberal justices. He wasn’t doing anything fancy, just setting out the evidence about Secretary of Commerce Wilbur Ross’s decision-making process. Mr. Ross had testified to Congress in March that he added the citizenship question “solely” because the Justice Department “initiated the request” for the purpose of enforcing the Voting Rights Act, which relies on survey data the Census Bureau collects. But his emails and other materials showed a “significant mismatch between the decision the secretary made and the rationale he provided,” Mr. Roberts wrote.
That line is an understatement, but it does the job. Chief Justice Roberts showed that Mr. Ross, determined to add the question, was in search of a rationale, and that it was Mr. Ross who contacted the Justice Department, not the other way around, in hopes of finding someone to supply it.That line is an understatement, but it does the job. Chief Justice Roberts showed that Mr. Ross, determined to add the question, was in search of a rationale, and that it was Mr. Ross who contacted the Justice Department, not the other way around, in hopes of finding someone to supply it.
Adding up the evidence, the chief justice concluded, as three district court judges had before him, that Mr. Ross’s “sole stated reason” about voting rights enforcement didn’t hold up. This “we cannot ignore,” he wrote. To underscore his point, the chief justice reached back to a 1977 case to extract a great line from the appeals court judge he had clerked for, Henry J. Friendly of the Second Circuit: Judges are “not required to exhibit a naïveté from which ordinary citizens are free.”Adding up the evidence, the chief justice concluded, as three district court judges had before him, that Mr. Ross’s “sole stated reason” about voting rights enforcement didn’t hold up. This “we cannot ignore,” he wrote. To underscore his point, the chief justice reached back to a 1977 case to extract a great line from the appeals court judge he had clerked for, Henry J. Friendly of the Second Circuit: Judges are “not required to exhibit a naïveté from which ordinary citizens are free.”
Phew.Phew.
Last year, the chief justice wrote a very different opinion for the court’s conservative wing, allowing President Trump to impose his ban on people traveling to the United States from several majority Muslim countries. In that case, the ban’s challengers also questioned the underlying motives of government officials and the plausibility of their proffered national security rationale for the ban. To give the administration a green light, the chief justice had to ignore President Trump’s many public statements maligning Muslims. The ruling suggested that the chief justice and the other conservatives on the court were willing to exhibit naïveté — to turn a blind eye to what they didn’t want to see.Last year, the chief justice wrote a very different opinion for the court’s conservative wing, allowing President Trump to impose his ban on people traveling to the United States from several majority Muslim countries. In that case, the ban’s challengers also questioned the underlying motives of government officials and the plausibility of their proffered national security rationale for the ban. To give the administration a green light, the chief justice had to ignore President Trump’s many public statements maligning Muslims. The ruling suggested that the chief justice and the other conservatives on the court were willing to exhibit naïveté — to turn a blind eye to what they didn’t want to see.
But there is a difference between the travel ban and census cases. By the time the travel ban reached the Supreme Court, it was version 3.0. The government had cleaned up the worst evidence of prejudice and chaos. In the census case, the court got it before Mr. Ross built a record to plausibly justify his actions. And in the end, Chief Justice Roberts, alone among the court’s conservatives, wouldn’t pretend otherwise. Finally, there’s a limit to what the court will tolerate from the president and his officials, where no limit seemed to exist before.But there is a difference between the travel ban and census cases. By the time the travel ban reached the Supreme Court, it was version 3.0. The government had cleaned up the worst evidence of prejudice and chaos. In the census case, the court got it before Mr. Ross built a record to plausibly justify his actions. And in the end, Chief Justice Roberts, alone among the court’s conservatives, wouldn’t pretend otherwise. Finally, there’s a limit to what the court will tolerate from the president and his officials, where no limit seemed to exist before.
Still, the chief justice didn’t shut the door on the Commerce Department’s plan to add a citizenship question. The agency will get another shot at justifying its decision, though the court’s response to the department’s poor record so far should make that hard to do.Still, the chief justice didn’t shut the door on the Commerce Department’s plan to add a citizenship question. The agency will get another shot at justifying its decision, though the court’s response to the department’s poor record so far should make that hard to do.
The court’s liberal justices would have shut that door. In an opinion by Justice Stephen Breyer, they argue that Mr. Ross’s decision was straight-up unjustified, whatever rationale he offered, because of the evidence that it will harm the accuracy of the count in ways that penalize communities where immigrants live.The court’s liberal justices would have shut that door. In an opinion by Justice Stephen Breyer, they argue that Mr. Ross’s decision was straight-up unjustified, whatever rationale he offered, because of the evidence that it will harm the accuracy of the count in ways that penalize communities where immigrants live.
And so the legal challenges to the census were about more than administrative process. They were about fairness in sharing resources and political power.And so the legal challenges to the census were about more than administrative process. They were about fairness in sharing resources and political power.
There’s another part of the story, not mentioned by the court, which will loom over any effort by the Trump administration to revive the citizenship question. (There may yet be time: Although the government has said that it has to print the census forms by the end of June, it may be able to push that deadline to October.) A Federal District Court judge in Maryland will consider another issue in a challenge to the citizenship question filed there: Did the Trump administration add the citizenship question to discriminate on the basis of race?There’s another part of the story, not mentioned by the court, which will loom over any effort by the Trump administration to revive the citizenship question. (There may yet be time: Although the government has said that it has to print the census forms by the end of June, it may be able to push that deadline to October.) A Federal District Court judge in Maryland will consider another issue in a challenge to the citizenship question filed there: Did the Trump administration add the citizenship question to discriminate on the basis of race?
Last month, new evidence on this point surfaced in a court filing, based on a dramatic 11th-hour discovery on the hard drive of a Republican strategist, Thomas Hofeller. After Mr. Hofeller’s death last summer, his daughter, Stephanie, found documents on his hard drives that showed him playing a largely undisclosed role in the government’s decision to add the citizenship question. It may be the smoking gun challengers have been looking for.Last month, new evidence on this point surfaced in a court filing, based on a dramatic 11th-hour discovery on the hard drive of a Republican strategist, Thomas Hofeller. After Mr. Hofeller’s death last summer, his daughter, Stephanie, found documents on his hard drives that showed him playing a largely undisclosed role in the government’s decision to add the citizenship question. It may be the smoking gun challengers have been looking for.
Mr. Hofeller did a study in 2015 showing that with citizenship data from the census, states could change the way they draw electoral maps for state and local elections. Instead of counting everyone for purposes of redistricting (as the Constitution requires for federal elections), a state could count only citizens, and thus shift power away from urban areas with larger immigrant populations, and toward rural areas, which are whiter and tend to vote for Republicans. Mr. Hofeller detailed what that meant: An electoral map drawn to include only citizens in Texas “would be advantageous to Republicans and non-Hispanic whites,” he wrote, and would reduce the power of Hispanics.Mr. Hofeller did a study in 2015 showing that with citizenship data from the census, states could change the way they draw electoral maps for state and local elections. Instead of counting everyone for purposes of redistricting (as the Constitution requires for federal elections), a state could count only citizens, and thus shift power away from urban areas with larger immigrant populations, and toward rural areas, which are whiter and tend to vote for Republicans. Mr. Hofeller detailed what that meant: An electoral map drawn to include only citizens in Texas “would be advantageous to Republicans and non-Hispanic whites,” he wrote, and would reduce the power of Hispanics.
If that was the Commerce Department’s real rationale for adding the citizenship question, then it would be racially discriminatory and unconstitutional. The evidence suggests that Mr. Hofeller was directly involved in efforts to add the citizenship question on the census.If that was the Commerce Department’s real rationale for adding the citizenship question, then it would be racially discriminatory and unconstitutional. The evidence suggests that Mr. Hofeller was directly involved in efforts to add the citizenship question on the census.
U. S. District Court Judge Judge George Hazel, who is overseeing the Maryland case, wants to explore the questions that the Hofeller evidence has raised. Last week, the Fourth Circuit Court of Appeals told him to go ahead. And now that will happen unless the Supreme Court stops it. U. S. District Court Judge George Hazel, who is overseeing the Maryland case, wants to explore the questions that the Hofeller evidence has raised. Last week, the Fourth Circuit Court of Appeals told him to go ahead. And now that will happen unless the Supreme Court stops it.
The Roberts opinion reads as if it is politically neutral. But it won’t be clear how important or lasting it is until we know the ultimate fate of the citizenship question. The chief justice’s legacy on this score is still to be determined.The Roberts opinion reads as if it is politically neutral. But it won’t be clear how important or lasting it is until we know the ultimate fate of the citizenship question. The chief justice’s legacy on this score is still to be determined.
Emily Bazelon is the author of “Charged: The New Movement to Transform American Prosecution. and End Mass Incarceration.”Emily Bazelon is the author of “Charged: The New Movement to Transform American Prosecution. and End Mass Incarceration.”
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