Bench Memos

Law & the Courts

A Mixed Bag on the Court’s Last Day with an Unforced Error on the Census

A protester holds a sign outside the Supreme Court in Washington, D.C., June 27, 2019. (Carlos Barria/Reuters)

Today the Supreme Court concluded its October 2018 term with three decisions, including two of the most closely watched of the term. I have reviewed here the Court’s commendable decision in Rucho v. Common Cause, recognizing that the Constitution does not authorize courts to redraw districts in response to challenges to partisan gerrymandering.

In Department of Commerce v. New York, however, the Court dropped the ball on the challenge to the Trump administration’s decision to reinstate a question about citizenship in the census. At any other time in history, an administration’s decision to do so would have been considered unremarkable. The census has traditionally asked a host of questions about background that include race, sex, age, Hispanic origin, and living arrangements. Census authorities have been asking about citizenship status in one form or another for nearly all of the past 200 years, whether as a component of the decennial census or since 2005 as part of the American Community Survey (ACS), an annual survey that reaches a rotating sample of about 2.6% of households.

The Secretary of Commerce announced his decision to reinstate the census in 2018 at the request of the Justice Department, as an improvement of the methodologically flawed, often inaccurate ACS-collected data about the citizen voting-age population for purposes of enforcing the Voting Rights Act (VRA).

In reaching this decision, he rejected the recommendation of the Census Bureau to rely for citizenship data on administrative records from other agencies, such as the Social Security Administration and Citizenship and Immigration Services. To be sure, there were tradeoffs involved no matter what the secretary decided to do: There was a risk that noncitizens would not fill out a revised census form (though evidence also suggested noncitizen households were less likely to respond to any effort by the government to collect information), but consider the inaccuracies that would result if the government declined to make the effort to collect comprehensive answers to begin with.

In any event, the first several sections of the Court’s opinion dealing with the merits rejected challenges to the secretary’s decision based on the Enumeration Clause of the Constitution, the Census Act, and the Administrative Procedure Act (APA)’s requirement that decisions be supported by the evidence. The secretary’s decision was a reasonable one—and reasonably explained—that passed muster on all these fronts, not because an argument could not be made for the secretary to have decided otherwise, but because longstanding principles of judicial review of such executive action prevent the Court from substituting its own judgment for that of the secretary. Those sections of the Court’s analysis, written by Chief Justice Roberts, were joined by only four justices, Thomas, Alito, Gorsuch, and Kavanaugh—who, if they had their way, would have ended the inquiry there.

Unfortunately, the last section of Roberts’ opinion veered off the course of what should have been a straightforward inquiry with the votes of Justices Ginsburg, Breyer, Sotomayor, and Kagan. There the Court held the secretary’s decision should be set aside, as the district court had held, and the case remanded to the agency because, based on a review of internal agency records produced to the district court, the Court believed “the VRA enforcement rationale” was pretextual, something that “seems to have been contrived.”

That novel standard for impeding the federal government’s collection of basic demographic information is what seems to be contrived, and in a troublingly partisan direction. As Thomas put it in dissent, it was a departure from the “more impartial approach” required by law in favor of that of the district court, which was “transparently based on the application of an administration-specific standard.” The Court made “an unauthorized inquiry into evidence not properly before us to reach an unsupported conclusion,” holding for the first time that an agency decision was “arbitrary and capricious on the ground that its supporting rationale was ‘pretextual,’” contrary to the “‘settled propositions’ of administrative law.”

Gorsuch and Kavanaugh joined Thomas’ partial dissent from the Court’s judgment. Alito separately voiced similar concern about the Court’s aberration from longstanding principles governing review of executive decisions and made the further argument that the secretary’s decision was not subject to a challenge under the APA.

Breyer issued an opinion dissenting from the other aspects of the Court’s judgment, joined by Ginsburg, Sotomayor, and Kagan. They made clear they would have invalidated the secretary’s decision as arbitrary and capricious regardless of whether it was pretextual—a glimpse into the judicial free-for-all that would follow if that bloc of the Court had another vote to second-guess presidential administrations not to their liking.

Citizenship is foundational to a democracy, and the Fourteenth Amendment notably affirms citizenship and the privileges and immunities attached to it. But nowadays, the increasingly-radical Left is rejecting the notion that citizenship has any real meaning and believes that the right to vote no longer needs to be attached to citizenship. That background may explain the appropriateness of Alito’s lament:

It is a sign of our time that the inclusion of a question about citizenship on the census has become a subject of bitter public controversy and has led to today’s regrettable decision. While the decision to place such a question on the 2020 census questionnaire is attacked as racist, there is a broad international consensus that inquiring about citizenship on a census is not just appropriate but advisable.

The sad irony is that the Court’s unforced error presents a gratuitous impediment to the federal government’s collection of basic demographic information that would have aided its efforts to protect the voting rights of all citizens.

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