Conservative Justices Seem Inclined To Keep Citizenship Question On Census

With so much at stake — the apportionment of political power nationwide, the adequate representation of immigrant communities, the scope of executive power —the Supreme Court arguments Tuesday over whether the Trump administration could add a citizenship question to the 2020 census wound up being highly technical. The much-anticipated hearing included ample discussion of phrases like “comparative errors,” “maximal need,” and “credible quantitative evidence.”

What was not evident was any uncertainty or movement among the conservative justices towards ruling against the administration, even though ruling in favor of the administration would put the right-leaning majority in somewhat a hypocritical spot, given some of the conservatives’ previous posturing against the executive branch being given broad discretion in agency decisions.

But they did little to engage with that tension Tuesday, and seemed to go along with the Justice Department’s arguments that if the court intervenes to stop the administration from adding this question, then all sorts of other questions currently asked in the census could be challenged as well.

The liberal justices — perhaps aware they faced an uphill battle to convince their conservative counterparts to strike down the question — displayed a deep understanding of the empirical issues at play in the case. They were able to bat around Solicitor General Noel Francisco, who received few life rafts from the conservative justices during his initial defense of Commerce Secretary Wilbur Ross’ decision to add the question.

There was no clear sign during Tuesday arguments, however, that the liberals would succeed in finding a fifth vote to rule against the citizenship question, which has been blocked by three lower courts.

Chief Justice John Roberts had one or two skeptical questions for Francisco, but showed just as much skepticism towards the arguments of the states and non-profits challenging the Trump administration’s move.

Justice Samuel Alito, meanwhile, was the administration’s most effective ally in the court, as he grilled the challengers’ lawyers about an assessment made by the Census Bureau as it recommended against adding the citizenship question to the decennial  survey.

“I don’t think you have to be statistician…” Alito said, to begin a line of inquiry that questioned the findings of the Census Bureau’s statisticians.

The Trump administration has not challenged the Census Bureau’s conclusion that the question would result in a nearly 6 percent decline in self-response among noncitizen households.

The other conservative justices stuck to more superficial lines of inquiry that hewed to the administration’s top-line defenses of the question. They seemed less interested in engaging in the more complicated arguments against adding the question. At earlier steps in the proceedings, the three most conservative justices already signaled they were inclined to rule in favor of the government.

The case, Commerce Department v. New York, has monumental implications for voting rights and how political power is doled out in the country. By discouraging immigrant communities from participating in the count, the citizenship question stands to diminish the amount of political representation those communities receive. Furthermore, it is likely that conservative activists will then use the citizenship data the question produces to cut non-citizens out entirely from the count that is used to draw legislative districts.

For all of the case’s broad implications, much of Tuesday’s arguments focused on a highly technical point in the case: that the Census Bureau had repeatedly advised Ross that there were better ways to provide the citizenship data he was seeking than asking it directly on the country-wide census. Lower court judges have ruled that Ross violated the Administrative Procedures Act because his decision to add the citizenship question despite the Census Bureau’s advice was arbitrary and capricious.

When Francisco tried to defend Ross’s decision by pointing to standalone lines in the Census Bureau’s recommendations, the liberal justices pushed back with a deep understanding of the bureau’s bottom line conclusions and the larger context of its analysis.

At one point, Justice Elena Kagan told Francisco that the solicitor general’s office, in its filings in the case, had given Ross 60 pages of “post hoc rationalization” that weren’t in his initial explanation of the decision. 

Only occasionally were there allusions to the more sensational aspects of the case. Ross still claims he added the citizenship question at the request of the Justice Department for it to use in enforcing the Voting Rights Act. But the record in the case has seriously undermined that claim and shows Ross misled Congress and the public in explaining in March 2018 why he was adding the question.

“This is a solution in search of a problem,” Justice Sonia Sotomayor told Francisco, in reference to records showing that the Commerce Department shopped around looking for an agency to request the question. The Justice Department at first resisted making the request, until Ross sought an intervention from then-Attorney General Jeff Sessions.

The confusion and deception surrounding the lead-up to Ross announcement that he was adding the question was of little concern to the conservative justices Tuesday.

Justice Brett Kavanaugh asked first about the Justice Department’s stated rationale that the data would enhance voting right enforcement and later about the United Nations’ guidance that countries survey citizenship. Kavanaugh also parroted the administration’s talking point about the citizenship question having always been asked “in one form or another” — a talking point the liberal justices at this point had already demolished.

Justice Neil Gorsuch piggybacked off Alito’s questions about the decline in self response. He also alluded to previous cases where there were arguments that the Census Bureau wasn’t producing accurate enough citizenship data — a seeming reference to a lawsuit that sought to exclude noncitizens from redistricting.

To defend Ross’ decision, Alito homed in on an argument made by Francisco that Ross opted in favor of the question because the Census Bureau could not give him a quantifiable estimate for how accurate its proposed method — using modeling based on existing records— for getting the citizenship data would be compared to asking the question.

ACLU attorney Dale Ho pushed back on Alito’s suggestion that the Census Bureau had essentially asked Ross to “trust us” in producing more accurate citizenship data — using its proposal — than adding the question.

“Justice Alito, respectfully, I think the Census Bureau said a little bit more than ‘trust us.'” Ho said. “What the Census Bureau said was we can develop a highly accurate model for this that’s going to be better” than asking the question on the survey.