The instant Justice Anthony Kennedy announced his retirement last June, Chief Justice John Roberts became one of the most watched men in America. With Kennedy gone, Roberts now holds the balance of power on a court otherwise split between four Democrats and four Republicans who are even more conservative than the Chief.
And, next Tuesday, the Supreme Court will hear a case that is likely to provide the clearest window to date into just how willing the Chief Justice is to politicize his court.
As a man, Roberts appears immune to sympathy for victims of voting discrimination. As a young Justice Department lawyer, Roberts urged President Ronald Reagan to veto a law ensuring that Voting Rights Act plaintiffs would be able to prevail against voter suppression. As chief justice, Roberts voted to gut a key provision of that same act — based on his belief that the United States is no longer racist enough to justify a fully operational Voting Rights Act.
The next presidential election, fully 46 percent of the electorate voted for Donald Trump.
And yet, there is another side to the Chief. Roberts is the last gasp of a conservatism that is fearful of unchecked judicial power and that believes the Supreme Court has a limited role to play in a democracy. He famously saved most of the Affordable Care Act from a politically motivated lawsuit brought by Republican attorneys general, then wrote an opinion saving the law again from a similarly political suit just three years later. Even when Roberts voted against marriage equality in 2015, he did so in an opinion warning his fellow conservatives of the kind of judicial overreach that drives a growing list of Republican judges.
Roberts, in other words, is unpersuaded by appeals to liberal values, but he does care about his court as an institution, and he can sometimes be persuaded to side with liberals out of fear that the judiciary will be perceived as too political — and too eager to bend the law to benefit conservatives and Republicans.
Which brings us to Department of Commerce v. New York.
Rigging the Census
If New York didn’t involve a question at the heart of who will be represented in the United States government — that is, if it wasn’t precisely the sort of politically charged case that tends to bypass judges’ brains and activate their partisanship — then it would be a slam dunk against the Trump administration. It involves a tale of procedural errors, rank incompetence, and outright deception by Commerce Secretary Wilbur Ross and others, all apparently designed to shift power away from immigrant communities and toward white voters who are more likely to support Republicans.
The Constitution assigns seats in the House of Representatives “among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.” Thus, excepting Native Americans immune from taxation, all people in the United States must be counted in the Census, regardless of their citizenship status. And every person living in a state counts towards determining how many representatives that state shall have, regardless of each person’s immigration status.
As recently as the Jim Crow era, the decennial census form asked residents to identify whether or not they are citizens, but the United States abandoned this practice decades ago. As the Census’ top officials from the Reagan and Bush I administrations warned, asking about citizenship “could seriously jeopardize the accuracy of the census,” because “people who are undocumented immigrants may either avoid the census altogether or deliberately misreport themselves as legal residents,” while legal residents “may misunderstand or mistrust the census and fail or refuse to respond.”
According to one estimate, the 2020 Census could undercount the U.S. population by as much as 24 million people if it asks people about citizenship.
That’s very bad news if you care about accuracy, or about fairly apportioning representation and federal funding according to where people actually live. But if your goal is to disempower immigrant communities that are unlikely to support Trump, adding a citizenship question to the 2020 Census form is a pretty good way to do it.
Racism defeated by incompetence
There’s a strong argument that the Trump administration’s citizenship question violates the Constitution’s requirement that the Census provide an “actual Enumeration” of U.S. residents. But let’s set that argument aside. Chief Justice Roberts is rarely sympathetic to claims that voter suppression violates the Constitution, and New York is unlikely to be an exception.
The reason why this challenge to the citizenship question has a fighting chance is that the Trump administration’s actions do not just violate the Constitution, they also violate the Administrative Procedure Act (APA), which prohibits agencies from taking “arbitrary” or “capricious” action. As the Supreme Court held in Allentown Mack Sales & Service, Inc. v. NLRB “not only must an agency’s decreed result be within the scope of its lawful authority, but the process by which it reaches that result must be logical and rational.”
Though Roberts is typically unsympathetic to constitutional arguments in favor of voting rights, he is very sympathetic to arguments that a federal agency did not follow proper procedures — or, at least, he is sympathetic to these arguments outside of the context of national security. Roberts frequently writes opinions calling for federal agencies to have less discretion over domestic policy.
Which may explain why Judge Jesse Furman, the lower court judge whose opinion is now on appeal to the Supreme Court, spent a better part of his 277-page opinion laying out why the Trump administration’s efforts to add a citizenship question to the Census violates the APA. Indeed, Judge Furman’s opinion presents Secretary Ross, who led the administration’s efforts to add the question to the Census form, as grossly incompetent — ignoring clear statutory mandates, as well as the advice of his own experts within the Census Bureau.
The Census Act, for example, compels the Census to “‘acquire and use information’ derived from administrative records ‘instead of conducting direct inquiries’ to the ‘maximum extent possible.’” So the Census may not use a citizenship question if it could obtain information on citizenship through government records. Yet when Census officials advised Ross that existing government records would do a better job of identifying who is a citizen than a citizenship question on the Census — in no small part because many non-citizens would falsely identify themselves as citizens — those officials were ignored.
Federal law also requires “that the Secretary report to the relevant congressional committees, at least three years before the ‘census date’ for a given census, all ‘subjects proposed to be included, and the types of information to be compiled.’” But Ross did not give Congress the required notice regarding the citizenship question.
In some cases, Ross appears to have ignored — perhaps willfully — evidence presented to him by his own agency. As Furman writes:
Secretary Ross’s explanations for his decision [to add the citizenship question] were unsupported by, or even counter to, the evidence before the agency. For instance, he sought to justify his decision on the ground that “no one provided evidence that reinstating a citizenship question on the decennial census would materially decrease response rates.” But that assertion is simply untrue. The Administrative Record is rife with both quantitative and qualitative evidence, from the Census Bureau itself, demonstrating that the addition of a citizenship question to the census questionnaire would indeed materially reduce response rates among immigrant and Hispanic households.
The Bureau “calculated in January 2018 that adding a citizenship question to the 2020 census was likely to lead to a 5.1% differential decrease in self-response rates among noncitizen households.”
Worst of all, Ross appears to have lied about the true reason for the citizenship question. Though the secretary claims that it was added because the Justice Department requested such a question to help in enforcing the Voting Rights Act, Furman found that “Secretary Ross had made the decision to add the citizenship question well before DOJ requested its addition in December 2017.” Thus, “the evidence is clear that Secretary Ross’s rationale was pretextual — that is, that the real reason for his decision was something other than the sole reason he put forward in his Memorandum, namely enhancement of DOJ’s VRA enforcement efforts.”
If New York involved a different, less politically charged set of circumstances, then it is hard to imagine Roberts — or, indeed, very many judges at all — tolerating this kind of behavior. The federal government typically does not ignore explicit statutory mandates, nor does it give the middle finger to its own conclusions, or misrepresent its true motivations when it makes a shift in policy. And courts understandably are not sympathetic when the government does behave this way.
But New York arrives at the Supreme Court packaged with all the political baggage that any major voting rights case brings, and that makes its outcome uncertain. Motivated reasoning is a hell of a drug.
If Roberts is able to set aside his partisan preferences and evaluate New York the same way he would any other case that involves an egregious violation of the rules governing administrative procedure, that will be a hopeful sign that he will steer his court away from blind partisanship — and that Democrats may still live under something resembling the rule of law.
Should Roberts take a different path, however, that will be an even more ominous sign. If the Chief cannot set aside his partisan preferences in a case as clear cut as this one, then the future of American democracy is quite grim.