The Supreme Court seemed divided along ideological lines Tuesday as the justices heard arguments about the Trump administration’s move to add a question about citizenship to the 2020 census.
All of the court’s four liberals sounded highly skeptical about Commerce Secretary Wilbur Ross’s decision, which three federal judges have found illegal because it lacked a coherent explanation and could lead to a large undercount of non-citizens as well as Americans of Hispanic origin.
During the 90-minute court session, Justice Sonia Sotomayor was the most vocal critic of Ross’s action, saying it was fairly transparent that he wanted to add the citizenship question and then began fishing for a justification.
“This is a solution in search of a problem,” Sotomayor declared, blasting Ross’s approach as: “I got to find a problem that fits what I want to do.”
After Solicitor General Noel Francisco suggested that the courts should not meddle in Ross’s decision, Justice Stephen Breyer said there surely had to be some point at which a question is so bizarre that it would be unlawful to add it without proper justification.
“Suppose he says, ‘I’m going to have the whole survey in French?’” Breyer asked.
Most of the court’s conservatives appeared inclined to green light Ross’s move, with Justices Neil Gorsuch and Samuel Alito appearing most hostile to the legal challenges states and civil rights groups brought to the citizenship question.
Alito said he was convinced of deep flaws in estimates that adding the question could lead to about five percent fewer responses from non-citizens.
“I don’t think you to have to be much of a statistician to wonder about the legitimacy of concluding there will be a 5.
1% less response rate,” Alito declared. He and Gorsuch said factors other than citizenship, such as income or socioeconomic status, might explain why non-citizens more frequently ignore census surveys.Chief Justice John Roberts also seemed to be in the same camp as Gorsuch and Alito, but was somewhat less strident in his questions.
Justice Brett Kavanaugh, who directed probing questions to both sides, seemed to give less away about his views of the case.
Roberts and Kavanaugh got extra scrutiny from court-watchers Tuesday because last November, when the high court had the chance to head off the first trial on Ross's decision, they appeared to side with the court's liberals to let the trial go forward. Justices Alito, Gorsuch and Clarence Thomas said they would have halted the trial.
In one prickly moment towards the end of the argument, Sotomayor went after Francisco for suggesting that removing the citizenship question would allow groups to alter the census by “boycotting” any question they objected to. Americans who may object to the binary question on gender could try refusing to answer that query, he said.
“Are you suggesting Hispanics are boycotting the census? That they do not actually have a legitimate fear?” Sotomayor shot back.
“Not in the slightest,” Francisco replied, while insisting that the court would be setting a precedent permitting others to “knock off any question they found particularly objectionable.
While many of the court’s conservatives have railed against the use of foreign law in U.S. courts and the United Nations is often a focus of harsh criticism on the right, Gorusch and Kavanaugh both noted that the U.N. has recommended that countries ask a citizenship question on national censuses.
Federal judges in New York City, San Francisco and Greenbelt, Md., have blocked the Trump administration’s attempt to add the citizenship question to the 2020 Census — rulings that set up a showdown at the Supreme Court.
Time after time, federal judges have halted Trump’s immigration policies, but the administration hopes to find a warmer reception at the right-leaning Supreme Court. Last June the high court upheld Trump’s travel ban in a 5-4 decision that fell along ideological lines.
The Trump administration in late January called on the justices swiftly to take up the dispute over the citizenship question, arguing that the standard appeals process would take too long. The Census Bureau must finalize printed questionnaires by June 30 to meet production deadlines, the Justice Department said in a court filing.
The justices will consider several key issues raised in the lower court rulings, including whether the Commerce Department violated federal regulatory law when it added the citizenship question and whether the question runs afoul of the Constitution's enumeration clause, which mandates a census every 10 years to determine the composition of the House.
The stakes are high, even beyond the question of political representation: by one estimate, the 2020 Census will affect the national distribution of at least $883 billion in federal funds.
The Supreme Court in November had previously agreed to hear arguments over whether Commerce Secretary Wilbur Ross and other officials could be deposed in the New York case, but dropped that from the calendar. Plaintiffs in the case yielded in their demand to depose Ross after the judge in the case ruled in their favor.
The Trump administration argues that the citizenship question must be added to help enforce the 1965 Voting Rights Act, which prohibits racial discrimination against voters. The Census Bureau already collects citizenship information through separate surveys, but the administration asserts that inclusion on the decennial census will improve accuracy.
Critics, however, contend that the administration’s true purpose is to strip immigrant communities of voting power and federal funding. Immigrant households will decline to answer the questionnaire, they say, which in turn will result in undercounts in immigrant communities.
In the first ruling against the question, U.S. District Judge Jesse Furman dismissed the Voting Rights Act argument as a mere pretext. Furman said that evidence presented in the case — including emails sent by Ross and other officials — demonstrated that the secretary planned to add the question before the Justice Department requested that it do so in December, 2017. As a consequence, Furman ruled, the process violated the Administrative Procedure Act.
During a March 2018 House committee hearing, Ross denied discussing the citizenship question with White House officials. However, administration attorneys later acknowledged in court documents that Ross recalled a request from former White House strategist Steve Bannon to discuss the issue with former Kansas Secretary of State Kris Kobach, an immigration hard liner.
Kobach later sent Ross an email in July 2017 that offered possible language for the citizenship question — five months before DOJ asked the Census Bureau to add the question.
The other two federal judges similarly ruled that the question violated the APA. They also found that, in diminishing the Census’s accuracy, the question was at odds with the Constitution’s enumeration clause.
Article originally published on POLITICO Magazine