The Supreme Court’s 5-4 decision on Thursday to block the Commerce Department from including a citizenship question on the 2020 census was legally and morally the right thing to do. As is its wont, the court made its decision on narrow procedural grounds, barely stopping to consider the racist underpinnings of the citizenship question — and that should concern us all.
Writing for the majority, Chief Justice John Roberts said Commerce Secretary Wilbur Ross’s justification for adding the citizenship question was “contrived,” and remanded the decision back to the lower courts. Roberts, who sided with the liberals as he did in 2015 when the court upheld Obamacare, rejected Ross’s argument that new citizenship data was needed to better enforce the Voting Rights Act. The “evidence tells a story that does not match the Secretary’s explanation for his decision,” the chief justice wrote.
Myopia is an occupational hazard of serving on the nation’s highest court, but in this case of tremendous import, the justices — even the liberal ones — missed the forest for the trees.
Deciding the case on a narrow reading of the Administrative Procedures Act, none of the justices commented substantively, even in dicta, on the bold-faced subtext of the census dispute: that Trump officials had colluded with right-wing, xenophobic forces to systematically disempower communities of color. Myopia is an occupational hazard of serving on the nation’s highest court, but in this case of tremendous import, the justices — even the liberal ones — missed the forest for the trees. Only Justice Samuel Alito acknowledged the racial subtext of the case, noting that the question has been “attacked as racist,” despite international consensus that asking about citizenship is appropriate. (This is a popular talking point on the right, which ignores the specific context of race and immigration in America.)
The majority’s opinion is consistent with what legal observers have long been saying: The Voting Rights Act rationale was pre-textual, a post-hoc scheme by Trump officials to obscure their real motive: to suppress participation in the census and allow them to gerrymander districts to maintain white minority rule.
“As a practical matter, any observer knows there was never a legitimate reason to do this,” said Loyola Law School professor Justin Levitt, a former Justice Department Civil Rights Division lawyer, who noted that citizenship data was not needed to enforce the Voting Rights Act during his tenure as the top enforcer of voting rights law. “That is manifest by the fact that they had to turn to a pretext in the first place, that it took them a year to find a pretext, and that the pretext they landed on was so ludicrous.”
The Supreme Court’s decision, in effect, blocks the citizenship question from appearing on the 2020 census questionnaire — for now. The U.S. Census Bureau is meant to finalize and start printing census questionnaires by June 30, but the bureau recently testified that it could theoretically push back the printing deadline as far as October 31 if “extraordinary resources” were tapped to do so. Presumably those resources would have to come from Congress.
The high court overturned a ruling from a New York district court that Ross’s decision was “arbitrary and capricious” under the Administrative Procedures Act and upheld the constitutionality of a citizenship question under the Enumeration Clause of the Constitution. In other words, the court agreed with the government that a citizenship question could be legal, if justified by a legitimate reason.
The court agreed with the government that a citizenship question could be legal, if justified by a legitimate reason.
“The ruling essentially says, ‘You can’t give a fake reason,’” Levitt told The Intercept. “The secretary would now have to give a real reason, but the time window is closing quickly on that.” And if Ross can come up with a justification, derived from a reasonable decision-making process, it would still have to survive the scrutiny of New York City District Judge Jesse Furman, to whom the case has been remanded. And, as Levitt puts it, “Furman has no shortage of skepticism for the secretary.”
Still, if Ross comes up with another rationale, and the lower courts affirm it, a citizenship question could still appear on the census form if the bureau is willing to extend its June 30 deadline.
“I’m relieved,” said Terri Ann Lowenthal, former staff director of the House census oversight committee, “and I applaud the Supreme Court for upholding honest and evidence-driven decision-making.” The important thing now, Lowenthal insisted, is that Ross “stands down” and allows the bureau to “proceed with final preparations for the census it had painstakingly developed over the course of the decade.”
The court’s characteristically narrow ruling, however, elides the most important revelation of the census saga: that the Donald Trump administration allied with anti-immigrant demagogues and the architects of Republican gerrymandering in an effort to specifically suppress the political power and participation of immigrants and people of color. Emails released by the Commerce Department during litigation revealed that former Kansas Secretary of State Kris Kobach, mastermind of nationwide voter suppression efforts, wrote to Ross in July 2017, “at the direction of Steve Bannon,” urging him to add a citizenship question because its absence “leads to the problem that aliens … are still counted for congressional apportionment purposes.”
Then, earlier this month, it was reported that the late Tom Hofeller, a Republican National Committee redistricting expert, had urged the Trump transition team to adopt a citizenship question after determining that it “would clearly be a disadvantage to the Democrats” and “advantageous to Republicans and non-Hispanic whites.” A paragraph drafted by Hofeller and found on his hard drive by his estranged daughter supported the premise that citizenship data would help enforce the Voting Rights Act. That paragraph later appeared word for word in a draft letter from the Justice Department to the Census Bureau requesting the citizenship question.
This accumulation of evidence suggests not just that Ross’s justification — to Congress and the public — was a lie (or, as Roberts would put it, a “contrivance”), but that the real motive was the one suspected by Democrats and civil rights advocates from the outset: to transfer political power from minority communities to white people in red states.
“We know the attempt to add a citizenship question was politically motivated, done to suppress participation among communities traditionally hard to count,” said Rashad Robinson, executive director of racial justice group Color of Change. “This is about stealing resources, representation, and political power.”
“This is about stealing resources, representation, and political power.”
Like the widespread state-level gerrymandering designed in part by Hofeller, sabotaging the census is part of the Republican Party’s ongoing quest for white minority rule in America. (In a separate decision, the court on Thursday gave an unabashed green light to political gerrymandering.) The Supreme Court’s ruling, even if it effectively kills the citizenship question until 2030, should not be the end of this story. Rather, the Trump administration must be held accountable for attempting to systematically disempower and disenfranchise a huge swath of Americans.
There’s still a chance that reckoning could happen. In a filing on Monday, Maryland District Court Judge George Hazel said the evidence from Hofeller’s hard drive “potentially connects the dots between a discriminatory purpose — diluting Hispanics’ political power — and Secretary Ross’s decision” to add a citizenship question. In other words, Hazel was prepared to consider whether the Trump administration had violated the Constitution’s equal protection clause.
Now that the Supreme Court has vacated Ross’s original decision, the proceedings in Maryland will likely stop. “The Secretary’s original decision was vacated [by the Supreme Court], so there’s nothing for Judge Hazel to continue reviewing,” said Levitt, “but if Secretary Ross comes back with a new decision, you can bet that Judge Hazel won’t be the only one watching closely for evidence of unconstitutional motive.”
Trump officials and outside collaborators conspired to undermine representative democracy for the benefit of white Republican voters. Only when they’re held accountable for that will justice have been done.