The Court of Supremely Bad Faith By Matt Ford

newrepublic.com
The Court of Supremely Bad Faith
By Matt Ford
7-9 minutes

Once again, Chief Justice John Roberts and his colleagues are poised to hand the Trump administration a decisive legal victory on dubious factual grounds. During oral arguments on Tuesday, the justices appeared to favor the administration’s dishonest defense of its attempt to add a citizenship question to the 2020 Census. A win for Trump could have serious consequences for the census’ accuracy, and for the near future of American democracy.

It’s unrealistic to expect anyone to agree with all or even most of the Supreme Court’s major rulings. What Americans should be able to expect is that the decisions will at least be grounded in reality and coherent logic. As in other recent cases, the justices on Tuesday instead tried to craft an alternate set of circumstances in which their eventual decision would make sense, rather than applying the law to the facts at hand.

The case, Department of Commerce v. New York, is perhaps the most consequential dispute on the court’s docket this term. The Constitution requires the federal government to count every person in the United States every ten years in order to determine how many House members each state gets to elect. State legislatures also use the data to apportion their own legislatures. What’s more, census statistics are used by cities, counties, states, and Congress to decide where and how to allocate billions in government funds.

Though the government asked about citizenship when it conducted the census in the past, it abandoned the practice in the 1950s. Census Bureau statisticians estimated that reinstituting the question today would prompt millions of respondents to avoid participating. “That has been proven in study after study,” Justice Sonia Sotomayor noted on Tuesday. “One census surveyor described an incident where he walked into a home, started asking citizenship, and the person stopped and left his home, leaving the census surveyor sitting there.” A citizenship question would be to the detriment, specifically, of communities with a higher share of non-citizens—which may well be the Trump administration’s intent, given its undisguised hostility toward immigrants.

The administration can’t get its own defense straight. Secretary of Commerce Wilbur Ross, whose department oversees the Census Bureau, claimed that he added the citizenship question at the request of the Justice Department, which said it would use the data to enforce part of the Voting Rights Act of 1965. Ross’s emails from 2017 later showed, however, that he asked Justice Department officials to make the formal request to justify a decision he’d already made. At the same time, Census Bureau officials urged Ross not to add the question because of its potentially deleterious impact.

“The Secretary’s decision rested primarily on one assertion, that it would improve the accuracy of citizenship data provided to the Department of Justice,” Dale Ho, the ACLU’s lawyer, told the justices. “But the administrative record revealed precisely the opposite, that it would make that data less accurate and, thus, harm the Secretary’s stated purpose of Voting Rights Act enforcement.” For that reason, Judge Jesse Furman blocked Ross from adding the question earlier this year, writing that the secretary violated federal administrative laws by acting in an “arbitrary and capricious manner.”

Instead of accepting that straightforward conclusion, the conservative justices grasped for ways to circumvent it. Justice Samuel Alito questioned whether the Census Bureau’s predictions could be explained by other factors, such as language ability or education. “I don’t think you have to be much of a statistician to wonder about the legitimacy of concluding that there is going to be a 5.1 percent lower response rate because of this one factor,” he said. “But maybe there is something more there.”

Barbara Underwood, New York’s solicitor general, explained that bureau officials reached that conclusion by comparing response rates between the 2000 census’s short-form questionnaire, which didn’t ask about citizenship, and its long-form questionnaire, which did. “In each case, every one, groups notwithstanding, there was a decline from the short form to the long form,” she told the justices. “But there was a much greater decline among Hispanics and non-citizens.”

At one point, Roberts gave credence to the government’s argument that its goal was to enforce the Voting Rights Act. “Do you think it wouldn’t help voting rights enforcement?” he asked Ho at one point. “The CVAP, Citizen Voting Age Population, is the critical element in voting rights enforcement, and this is getting citizen information.” The chief justice’s concern about the Voting Rights Act’s enforcement is somewhat unusual, to say the least. In the 2013 case Shelby County v. Holder, he led the conservative justices in a 5-4 decision that gutted a key enforcement mechanism in the landmark civil rights law.

Other principles also bent. The late Justice Antonin Scalia used to excoriate his liberal colleagues for highlighting foreign legal precedents in domestic cases. But that taboo didn’t seem to apply in Tuesday’s case. Justice Brett Kavanaugh approvingly cited the United Nations’s guidelines for administering a national census, which encourages gathering citizenship data, during oral arguments. “Does that international practice, that U.N. recommendation, that historical practice in the United States, affect how we should look at the inclusion of a citizenship question in this case?” he asked. “The same guidance from the U.N. also says to be careful to test questions to make sure they don’t interfere with the enumeration,” Underwood replied.

None of this is surprising. Last summer, the conservative justices brushed aside the bigoted origins of Trump’s Muslim ban to uphold it as a valid exercise of executive power. In February, in perhaps the most troubling instance, the court’s conservative members not only misled the public about the facts surrounding Domineque Ray’s imminent execution, then doubled down on those falsehoods in an unrelated case last month. Those decisions give the appearance that the court’s resurgent conservative wing is focused only on the results of a case—facts and reality be damned.

Oral arguments aren’t a foolproof indicator of how the justices will actually decide a case, of course. When the ruling comes out by the end of June, it’s entirely possible that the justices will side with the coalition of Democratic-led states and legal organizations that originally brought the lawsuit. But the outcome seemed preordained to most legal observers. That’s part of the problem.

A growing number of Democrats have embraced court-packing as a solution to the conservative grip on the Supreme Court. Last month, I argued that it would be an irreversible blow to the American tradition of judicial independence. It risks turning the nation’s highest court into something resembling Britain’s House of Lords, a chamber of lifetime appointees whose membership is decided solely by the whims of each new government. Packing the courts is typically the kind of behavior that the State Department condemns when it happens in illiberal democracies and would-be dictatorships.

But those points presumed that the Supreme Court wasn’t already headed that way. If the court’s conservative justices uphold the citizenship question despite all the evidence against it, Democrats could reasonably conclude that the justices are more concerned about maximizing the Republican Party’s electoral prospects than applying the law to the facts at hand. In those circumstances, packing the court wouldn’t be what transforms the court into a purely political force. It would merely finish the job.