The justices hand down a (mostly) commonsense decision on census

The divided Supreme Court decision putting a stop sign in the path of the Trump administration’s plan to have 2020 Census respondents answer a question about their citizenship status is a surprising and (mostly) welcome development.

Putting to the side what becomes of efforts outside the court to somehow save the citizenship question, this week’s decision is important to administrative rationality and the rule of law for at least three reasons.

First, by sidelining the citizenship question the court protected the rights of voters in New York, California and other states with diverse populations to be fully represented in the House of Representatives. The census question challengers credibly alleged what common sense suggests and census experts found — that asking households already on edge about government plans to go after undocumented immigrants is likely to substantially suppress census participation by noncitizens and Latino citizens. Census data are used for a variety of crucial governmental purposes, including determining the number and configuration of House election districts. Census data also determine how billions of dollars in federal funding for key state and local priorities are distributed.   

Second, minimally honest government and the rule of law are served by having a court majority stand for agency decision-makers at least providing what Chief Justice Roberts called “genuine justifications for important decisions.” Even before the recent revelation of a memo from a nationally prominent Republican operative, allegedly shared with Trump administration officials and documenting partisan advantage to Republicans — and even before recent congressional testimony suggested the same partisan motivation — one did not have to be either a rocket scientist or a political scientist to imagine how using inaccurate census data for redistricting and House seat allocation would dilute minority power and make it significantly harder for Democratic candidates to win a House majority.

This political backdrop makes it important that the court majority agreed with Judge Jesse Furman’s methodical conclusion that Commerce Secretary Wilbur Ross’s reason for reprising the citizenship question — that the Justice Department needed better data for Voting Rights Act enforcement — was, again quoting Chief Justice Roberts, “contrived.” The jurists saw the evidence as demonstrating that Ross entered office committed to reviving the citizenship question, that his staff sought an outside requester to provide cover, and that Ross settled on the threadbare Justice-Department-needs-this explanation “late in the process.” All this led to, as Roberts diplomatically put it, “a significant mismatch between the decision the secretary made and the rationale he provided.”

Finally, the census decision avoids sending a disheartening signal to dozens of lower-court jurists now hearing challenges to Trump administration regulatory (and, often, deregulatory) initiatives.  As in the census case, these challenges ask whether the administration’s rationales are illegal because they are “arbitrary, capricious [or] an abuse of discretion,” in the words of the federal Administrative Procedure Act (APA).

APA “arbitrary and capricious” review requires courts to carefully balance legal and policy factors. Courts should give appropriate nods to administrative expertise, yet be willing to take an independent and hard look at realities. Above all, reviewers should apply common sense and avoid laughable naivete.  

And, of course, the four justices (Thomas, Alito, Gorsuch and Kavanaugh) apparently willing to ignore Secretary Ross’s shell game is troubling. This suggests justices either naive about political realities or blinded by party loyalty or ideological rigidity. As one who tries consistently to argue that reducing Supreme Court decisions to “just politics” fails to give a complete or accurate picture, it pains me when the justices themselves appear to validate the simplistic political scenario.

Indeed, it gets worse for these four justices when one compares their uncritical embrace of the commerce secretary’s rationale with the position they endorsed earlier in the week, in Kisor v. Wilkie, that agencies generally should face stronger skepticism when their regulatory judgments are litigated. Although the legal contexts are different, the underlying worldviews aren’t. Many observers might see hypocrisy at work.

All in all, though, the census decision is one to be celebrated.

Glenn C. Smith teaches public law at California Western School of Law in San Diego. He is a former legal counsel to the Senate Governmental Affairs Committee and past chair of the Section on Legislation of the Association of American Law Schools. His monthly audio podcasts about Supreme Court decisions are hosted by San Diego State University’s Osher Lifelong Learning Institute.