Census paves moment of truth for the Supreme Court and rule of law

The rule of law is a core American value and something we treasure. But we are at a potential inflection point that must be recognized. We have a long history of following, if not liking, controversial court decisions, based on an innate understanding that to do otherwise would undermine the rule of law. No one knows that better than the Trump administration. It has worked with Senate Republicans to recast the Supreme Court and lower courts as extremely conservative. In so doing, it has been able to rely on the assumption that even the most jarring lurches in the law, likely to be engineered in the next few years, will come to be accepted by the public.

That said, there is one person in Washington whose job it is to worry about whether the court will maintain the perceived legitimacy that is essential if its decisions are going to be accepted and followed. That is the role of the chief justice. John Roberts knows that the role of the court in our national life depends on the continued recognition that the court is a court, not just another forum for partisan squabbles. His concerns about this have been on red alert over recent years in the wake of the Merrick Garland nomination fiasco, the contentious Brett Kavanaugh hearings, the use of the dterm “Obama judges” by President Trump and, most importantly, the departure of Justice Anthony Kennedy, who sporadically but very visibly sided with the liberal wing of the court on a number of important cases.

It is not hard to link these evident concerns with the vote of Roberts in the census case last month. He joined with the four more liberal justices to hold that the Trump administration was relying on a contrived, meaning untrue and deceptive, rationale for including a citizenship question in the census questionnaire to be used in 2020. If he was going to join with his conservative colleagues the same day to cut off judicial supervision of the unconstitutional practice of gerrymandering congressional districts, he especially needed a case in which to vote against the ideological grain.

But how does that ruling look now? Here we are, just days after the key census ruling, and there have been some suggestions that the Trump administration does not actually feel obligated to respect the court ruling and just move on. Moreover, even though the Justice Department and the Commerce Department had thrown in the towel the other week, agreeing to stop fighting for the citizenship question, the president announced by tweet two days later that the question had to be asked on the census, and his attorney general soon after said they have a new approach to “provide a pathway for getting the question on the census.”

It is not clear what that means, but regardless, the suggestion that the census will still include the citizenship question puts the chief justice in a tough position. It looks as if, sooner or later, Roberts will have to make another ruling barring the attempt to keep the question on the census, or he will have confirmed the very impression that he was trying to avoid. The majority ruling of the chief justice calling out the dishonest nature of the defense of Secretary Wilbur Ross of the citizenship question will be for naught, and the court could look more nakedly partisan than it ever has.

Why? Because there simply is no plausible lawful pathway to keep the citizenship question on the census at this late stage. Once the court recognized the obvious fact that Ross was not telling the truth when he said the purpose of adding the citizenship question was to further the enforcement of the Voting Rights Act, the cat was out of the bag. The opinion may have formally left it open to the Commerce Department to come up with a new authentic and persuasive justification for adding a question that will predictably cause a census undercount of millions.

How likely is that? Given the many indications that Trump administration officials perceive advantages from undermining the census in this way, and these two years of prevarication, any new rationale will be dead on arrival from the point of view of an objective observer. The chief justice is likely to face an important choice. Having come this far to vindicate the law and uphold the court as a legitimate judicial institution, Roberts can either take it all back or stick to his guns. We are likely to find out soon.

Paul Smith is the vice president of litigation and strategy at the Campaign Legal Center in Washington. He teaches at Georgetown Law Center and is a member of the board of directors of the American Constitution Society.