By Noah Feldman
After oral argument Tuesday at the U.S. Supreme Court, it seems modestly likely that a majority of the justices is poised to allow the Trump administration to ask a citizenship question on the 2020 census. That would overturn a lower court decision holding, essentially, that Secretary of Commerce Wilbur Ross didn’t state his true reasons for wanting to add the question in the first place.
What’s tricky and interesting is how the conservative majority can get there. The district court opinion, a 277-page effort by Judge Jesse Furman, went to great lengths to suggest that Ross wasn’t motivated by his stated reason of needing the information to enforce the Voting Rights Act. Instead, the opinion hinted that Ross was probably motivated by partisan politics — and the hope that asking whether respondents are citizens would discourage some people, particularly in immigrant and minority families, from answering the census at all. Undercounting in their districts would result in less representation in Congress and less federal funding.
A possible answer emerged from the oral argument. While conservative Justices Samuel Alito, Neil Gorsuch and Brett Kavanaugh seem prepared to say that Ross’s decision-making was perfectly legitimate, Chief Justice John Roberts, the likely swing voter, seems inclined to take a different path.
Roberts, it appears, wants to assert that the court shouldn’t even consider whether Ross gave the real answer to justify his policies. Roberts wants to avoid the whole issue by insisting that the role of the court is simply to presume that Ross acted in accordance with the law.
If that’s what happens, then Roberts would be following a see-no-evil, hear-no-evil pattern he established in Trump v. Hawaii, the Muslim travel ban case.
Then, there was overwhelming evidence that President Donald Trump was motivated by anti-Muslim bias in blocking entry to travelers from a group of majority Muslim countries. Yet Roberts, writing for the court’s majority, said that the court would uphold Trump’s action “so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds.”
That’s legalese for saying that if the government could provide a reason for what it did that wasn’t blatantly unconstitutional, the court could effectively ignore the evidence of unconstitutional motive — like anti-Muslim bias.
Roberts probably won’t use the exact same doctrine in the census case, because the circumstances are a little different. The case doesn’t implicate national security. And unlike the subject of who can enter the country, the census isn’t an area where Congress has given the president near-total authority.
But Roberts’ comments at oral argument show he’s considering other routes to being able to ignore the evidence of Ross’s true motives.
Near the beginning of the oral argument, Roberts showed interest in Solicitor General Noel Francisco’s argument that the plaintiffs in the census case don’t have standing to challenge the citizenship question because their case was “based on speculation that the government itself will violate the law” by using census information to go after undocumented immigrants. (According to Francisco, that speculation is what would lead some people not to fill out the census.)
Roberts asked Francisco: “Do we, as our cases have often said … not assume illegal behavior in establishing standing?” Roberts explained: “In other words, we doubt people are going to engage on a regular basis in illegal behavior, and, therefore, we don’t think their injury is — is tangible or likely.”
Although the context is open to more than one interpretation, it seems that Roberts was suggesting that he might be open to barring the plaintiffs’ suit on the theory that there was no reason to assume the government would ultimately violate the law — and so no basis for allowing the plaintiffs to challenge the inclusion of the citizenship question. This legal approach would make the whole census case go away — without Roberts having to address Ross’s motives.
Later in the oral argument, Roberts tried a different tack with the lawyer representing the House of Representatives and arguing against the citizenship question. The lawyer, Douglas Letter, had just made the point that it was absurd that some justices were saying the whole question of Ross’s motives should be left to Congress. As he pointed out, staff from the Commerce Department was refusing to testify before the House precisely because the case was in litigation before the courts.
“Well,” Roberts replied, “we’ve been told there was no basis for the secretary to make any decision, other than the recommendation that was submitted to him by the [Census] Bureau, because that’s the … scientific evidence. And so there’s no room for the exercise of any discretion. So what information — what more information does the Congress need to address the problem?”
Robert’s line of thought only makes sense if you believe that the court should look only at what Ross gave as his explanation, not at what actually motivated Ross to add the citizenship question. Otherwise, the obvious answer to Roberts is that Congress or the court needs to talk to Commerce Department officials to find out what Ross’s real motives in fact were — and if they were the reasons he gave publicly.
The upshot is that Roberts seems to be looking for ways to find that the court should simply defer to Ross’s statement that he added the question to get information that would help enforce the Voting Rights Act.
As in Trump v. Hawaii, it seems, Roberts is once again hoping to avoid embarrassing the court by issuing a judgment that contradicts real-world facts.
At some point, however, Roberts will begin to look as if he is playing patsy for the Trump administration’s illegality. The chief justice ought to think long and hard this time.
Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. This column does not necessarily reflect the opinion of Minnesota Lawyer, the Bloomberg editorial board or Bloomberg LP and its owners.