The census-form question about citizenship is constitutional and will likely be found so by the U.S. Supreme Court. I base this thesis on five premises.
Premise 1
All federal judges are political — all. Constitutional scholar Jeffrey Toobin has observed: “When it comes to the core of the Court’s work, determining the contemporary meaning of the Constitution, it is ideology, not craft or skill, that controls the outcome of cases…. When it comes to the incendiary political issues that end up in the Supreme Court, what matters is not the quality of the arguments, but the identity of the justices.” What separates justices “is judicial philosophy — ideology — and that means everything on the Supreme Court.”
Similarly, Richard A. Posner, the great conservative judge and law professor, has written: “It is rarely possible to say with a straight face of a Supreme Court decision that it was decided correctly or incorrectly.” Constitutional cases, he added, “can be decided only a basis of a political judgment, and a political judgment cannot be called right or wrong by reference to legal norms.” (Some judges, after previewing this piece told me that Judge Posner’s comment about judges always being political is too categorical, that sometimes judges and judicial philosophies are not political.)
Roy Cohn once accurately observed: “Don’t tell me what the law is; tell me who the judge is.”
Premise 2
The claim that the census should seek only the number of residents, legal and illegal, in a state is not accurate. Section 2 of the 14th Amendment mandates the counting of citizens in each state. Legal scholars David B. Rivkin and Gibson B. Gray explain the necessity of this:
“Section 2 of the 14th Amendment provides that if a state denies the franchise to anyone eligible to vote, its allotment of House seats shall be ‘reduced in the proportion which the number of such … citizens shall bear to the whole number of … citizens … in such state.’ This language is absolute and mandatory. Compliance is impossible without counting how many citizens live in each state.”
Some 11 million residents are in the United States illegally. Their count is external to Section 2.
Premise 3
Adjudication of the citizenship-question dispute will traverse the usual political route. The decision by the judges on the Ninth Circuit Court of Appeal will be liberal and opposed to excluding illegal immigrants from the census count. That will be business as usual. Appellate courts go in the direction determined by their political compositions.
Premise 4
The Supreme Court presently has four liberal justices and four conservative justices, with Chief Justice John Roberts increasingly becoming the swing vote, as he did on the individual mandate for ObamaCare, federal funding for Planned Parenthood, and his demurral against the citizenship count on the census form.
Premise 5
With the knowledge of Section 2, which way will Chief Justice Roberts vote? Who knows? He does what he wants to do. But if he follows the 14th Amendment, he will support a census that counts the number of citizens in each state.
The fat lady has not yet begun to sing. How did we ever get into this predicament where one guy out of some 350 million Americans can singularly control this? There is something wrong with this picture.
Ronald L. Trowbridge is a policy fellow at the Oakland-based Independent Institute and a former director of the Fulbright Scholars Program. He later served as chief of staff for former U.S. Chief Justice Warren Burger.