As a Supreme Court nominee, Brett Kavanuagh seemed to vow revenge against Democrats who probed into credible allegations that he committed sexual assault. “What goes around comes around,” Kavanaugh told Senate Democrats in a hearing examining allegations that he attempted to rape psychology professor Christine Blasey Ford while both he and Ford were teenagers.
On Friday, the Supreme Court announced that it would hear one of the first cases Kavanaugh could use to exact such revenge — if landing partisan jabs on the Democratic Party is, in fact, his agenda. For the third time this term, the Supreme Court will wade into a challenge to the Trump administration’s effort to discourage many immigrants from participating in the 2020 Census.
The case is In re Department of Commerce.
Rigging the Census
Department of Commerce arises out of the Trump administration’s decision to ask Census respondents whether they are citizens — a question the Census has not asked as part of its decennial count since the Jim Crow era. Multiple experts, including top officials who led the Census in the Reagan and Bush I administrations, warn that asking a citizenship question “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.”
Under the Constitution, the United States must conduct an “actual Enumeration” of “the whole number of persons in each state.” Thus, all persons who live in the country must be counted, regardless of their immigration status. The Trump administration’s citizenship question potentially violates the Constitution because it could discourage millions of immigrants from participating in the Census.
Among other things, this effort to keep undocumented immigrants from participating in the Census could have profound implications for how U.S. House seats are allocated. The Fourteenth Amendment provides that “Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state” — so non-citizens count when representatives are allocated to the various states.
If the Trump administration successfully prevents millions of immigrants from participating in the Census, power will shift from states with large immigrant communities. One of the primarily beneficiaries of such a shift will be whiter states that tend to vote for Republicans.
A central issue in the litigation challenging the citizenship question is whether the Trump administration acted with an improper motive when it decided to add the question. Secretary of Commerce Wilbur Ross claimed that the citizenship question was added because the Justice Department requested it to aid enforcement of the Voting Rights Act.
There is significant evidence, however, that this explanation is a pretext. Among other things, the Civil Rights Division of the Justice Department has not filed a single Voting Rights Act case since Trump took office — so enforcing this act does not appear to be a high priority for this Justice Department. Moreover, as Judge Jesse Furman, the judge hearing the census litigation, noted in a September opinion, Ross ordered the citizenship question included despite “strong and continuing opposition” from the U.S. Census Bureau.
To probe this evidence that the Trump administration acted in bad faith when it added the citizenship question to the Census, Judge Furman permitted the plaintiffs to depose administration officials, including Secretary Ross and the acting head of the Civil Rights Division, John Gore. The Supreme Court halted the Ross deposition in October, but allowed the Gore deposition to move forward.
The specific question before the Supreme Court in Department of Commerce is whether Furman’s court may make such a deep inquiry into the motives behind the citizenship question. As a general rule, federal courts may only make a limited inquiry into federal agency actions, and this inquiry is typically limited to the evidence contained in the “administrative record” developed as the agency was considering its action.
There is an exception to this general rule, however. As even the Trump administration concedes, courts may probe deeper into an agency’s motives upon “a strong showing of bad faith or improper behavior.”
Department of Commerce is an administrative law case — which means that, at least on the surface, it is a case solely about the particular rules governing decisions by federal agencies. But questions about what should happen when a policymaker acts in bad faith arise in voting rights cases all the time. A state can pass a facially neutral law that can reduce minority voting power — or disenfranchise people of color outright.
Often, these cases turn upon whether the lawmakers who backed such a law acted with racist intent when they enacted it. And, as appears to be the case in Department of Commerce, such lawmakers often offer an innocent explanation for their new law as a pretext to justify their racist motive.
So Department of Commerce isn’t just an important voting rights case in its own right. It could also provide our first window into how a Supreme Court newly dominated by hardline conservatives will view allegations that racist lawmakers acted in bad faith.
In fairness, Kavanaugh’s vote in this dispute is genuinely uncertain, as is that of Kavanaugh’s fellow Republican, Chief Justice John Roberts. Though the Supreme Court temporarily prevented the plaintiffs challenging the census question from deposing Secretary Ross last October, Neil Gorsuch wrote a dissenting opinion, joined by Justice Clarence Thomas, suggesting that they would hand Trump a total victory in this litigation.
Then, a couple weeks later, the Supreme Court denied a request by the Trump administration to halt the Census trial altogether. This time, Justice Samuel Alito joined Thomas and Gorsuch in dissent.
Thus far, Roberts and Kavanaugh have both kept silent. We know that at least one of them voted with the liberals in both of these previous efforts to shut down this litigation. But neither publicly indicated how they voted.
So the outcome of Department of Commerce is all but certain to turn on Roberts and Kavanaugh’s vote. This case will present Roberts will an opportunity to show that he will not allow the Supreme Court to become a tool of the Republican Party. And it will allow Kavanaugh to show that he is a better judge than the enraged partisan who testified before the Senate Judiciary Committee.
Or, it could allow both men to confirm Democrats’ worst fears — that the Supreme Court has become a wholly owned subsidiary of the Republican Party.