LAST JUNE, when his vote clinched a 5-4 majority blessing President Donald Trump’s entry ban on travellers from several Muslim countries, Justice Anthony Kennedy subtly wagged his finger in the president’s direction. Even when the judiciary grants executive officials “substantial deference”, Justice Kennedy wrote, it is an “urgent necessity” that they respect “constitutional guarantees and mandates”. A year later, with another controversial Trump administration policy blocked by a trio of federal district courts, the Supreme Court again appears poised to hand the executive branch a victory. But with Justice Brett Kavanaugh in Justice Kennedy’s chair, the conservative majority is more resolute. Mr Trump will probably score a party-line win.
The case, Department of Commerce v New York, asks whether Wilbur Ross, the commerce secretary, lawfully added a question about citizenship to the 2020 census despite evidence that the move would scare off millions of people from completing the form. The constitution requires a count of “the whole number of persons in each State” every ten years. The census dictates how the 435 seats in the House of Representatives are allocated, and thus how many electoral-college votes should go to each state. Hundreds of billions of federal dollars are divided up according to state population, too. Areas where people are undercounted will suffer until at least 2030.
Soon after taking office in February 2017 Mr Ross sat down with Steve Bannon, Mr Trump’s erstwhile adviser, known for his hard line against immigration, to discuss adding a citizenship question to the census. Before announcing the decision, the commerce secretary undertook a belated quest to find a legal justification for doing so. At the oral argument, Justice Elena Kagan told the solicitor general, Noel Francisco, “you can’t really read this record without sensing” that the need for a citizenship query was “contrived”. Only after floating the concept with the Department of Justice (DOJ) and the Department of Homeland Security and phoning the attorney-general, Justice Kagan recounted, did the attorney-general come through with a letter saying the question was needed to enforce the Voting Rights Act of 1965. The request contradicted the view of experts from the Census Bureau and six of its former directors who served under both Democratic and Republican administrations.
Mr Ross’s stated justification for querying citizenship, the lower courts found, was just a pretext. The rulings did not mention that in recent years conservatives have not exactly demonstrated a desire to maximise turnout from ethnic minorities at election time. Judge Jesse Furman pointed to evidence that the question would result in less accurate and less complete citizenship data than other surveys while dampening response rates disproportionately in immigrant and Hispanic households. Together with similar rulings in California and Maryland, Judge Furman in New York found a “veritable smorgasbord” of procedural irregularities surrounding the addition of the citizenship question. Given those deficiencies, he found Mr Ross’s move to be “arbitrary and capricious”, in violation of administrative law.
At the hearing, the five Republican-appointed justices, including Mr Trump’s two, sounded untroubled by Mr Ross’s rationale for amending the census form. Justice Neil Gorsuch noted that “virtually every English-speaking country and a great many others besides ask this question in their censuses.” Justice Kavanaugh added that the “United Nations recommends” asking about citizenship. The census asked the question from the early 19th century until 1950, and a portion of households were asked the question until 2000. Justices Samuel Alito and Gorsuch teamed up to speculate about other reasons immigrants might not fill out the questionnaire. Maybe “socioeconomic status”, “education” or “language ability” contribute to the differential response rates between citizens and non-citizens, Justice Alito mused.
Mr Francisco gratefully received this benefit of the doubt, and tersely parried the liberal justices’ arguments. “It really does boil down”, Mr Francisco said, “to whether the secretary’s judgment here is a reasonable one.” And in weighing whether to sacrifice a decline in response rates for more citizenship data, Mr Ross “reasonably chose to go with the bird in the hand.” The oral argument suggests the five conservatives have a clear—if fraught—path to approving the question. The justices can simply defer to the official, brushing aside evidence about his motives.