(CNN) — Supreme Court justices were deeply divided Tuesday over whether the Trump administration can add a citizenship question to the 2020 census, with the conservative justices showing signs that they were inclined to vote in favor of allowing the question.
After more than an hour and a half of arguments where the justices repeatedly interrupted each other and counsel, Justices Samuel Alito and Neil Gorsuch suggested that Commerce Secretary Wilbur Ross was within his right to add the question.
Chief Justice John Roberts asked questions that seemed at times favorable to the administration, and Justice Brett Kavanaugh stressed that Ross has discretion in the area and that other countries ask a similar question. He called it a “common question” internationally.
The four liberal justices pounced on the administration’s argument however, asking whether the addition of the question would reduce the number of respondents to the census. Justice Stephen Breyer asked why Ross overruled census officials in making his decision.
Justice Sonia Sotomayor was perhaps the most persistent questioner. She pressed Solicitor General Noel Francisco on why the question was being asked of all recipients after some “65 odd years” of being left off. She said there was “no doubt” that people — non citizens and their households — would respond less. Justice Elena Kagan told Francisco that she searched the record for Ross’s justification in 2018, but came up empty. She suggested that Francisco was providing a kind of “post hoc rationalization” after the decision was made.
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The case comes on the eve of the 2020 census and represents the Supreme Court’s foray into an issue that goes to the core of political representation. The new conservative majority on the court — solidified with the addition of two Trump nominees — will have to weigh in on critics’ allegations that the administration is acting in a way to stunt the political influence of minorities.
The Constitution requires that every person be counted in the country each decade, and the census provides critical data that is used for issues such as the allocation of congressional seats and the distribution of billions of federal dollars to states and localities. Opponents of the question, which has not been asked of all recipients since 1950, say it will lead to a decrease in response rates by the millions.
Lower courts
Lower courts have ruled against the government, pointing to the administration’s shifting rationale for reinstating the question and held that the way the government proceeded was illegal.
Ross’s decision was unlawful for a “multitude of independent reasons and must be set aside,” Judge Jesse M. Furman of the U.S. District Court for the Southern District of New York ruled in January in a 277-page opinion after holding an eight-day trial.
Furman said that Ross’ decision to add the question violated the Administrative Procedure Act, a federal law that governs the way that agencies can propose and establish regulations. He said that Ross failed to consider several important aspects of the issue, and “alternately ignored, cherry-picked or badly misconstrued the evidence in the record before him.”
Most critically, Furman said that Ross’s stated rationale for the question, to promote the enforcement of the Voting Rights Act, was “pretextual — in other words, that he announced his decision in a manner that concealed its true basis rather than explaining it,” as the Administrative Procedure Act required him to do, the judge held.
It was back in March of 2018 that Ross announced that the Department of Justice — then still led by former Attorney General Jeff Sessions — had requested that the Census Bureau reinstate the question in order to obtain “more effective enforcement” of the Voting Rights Act.
Ross acknowledged that adding the question “could reduce” response rates, but said that more accurate citizenship date would outweigh such fears.
“After a thorough review of the legal, program and policy considerations, as well as numerous conversations with the Census Bureau leadership and interested stakeholders,” Ross wrote, he had decided to proceed.
But after a trial, Furman said that Ross’ justification in a March 2018 letter that announced the reinstatement was “materially inaccurate.”
Furman — drawing from documents and testimony — wrote that Ross, almost as soon as he arrived in office in February of 2017, began asking questions about adding a citizenship question. He spoke about the issue with Sessions, as well as immigration hardliners such as then political adviser Steve Bannon and Kansas Secretary of State Kris Kobach. Those consultations, as well as the new timeline, undermined the stated justification for the question, Furman held.
The judge also pointed to the fact that the Census Bureau believed that there were other ways to obtain more accurate measures of citizenship.
In testimony, Dr. John Abowd, the Census Bureau’s chief scientist, was asked whether he was under the impression that his work on the question mattered.
“Yes,” he said.
Abowd was then asked if he had ever been told that Commerce had in fact initiated the process to insert the question. “No one told me that,” Abowd testified. Furman noted that the doctor “choked up” and visibly held back tears.
Constitutional questions at play
Although Furman didn’t rule on the Constitutional questions, a judge sitting on the US District Court for the District of Maryland held that Ross’ action violated the Enumeration Clause of the Constitution, which provides for an “actual enumeration” every decade.
“Because the Secretary ignored evidence regarding the impact of the question and provided no legitimate rationale to support it, the addition of the citizenship question would unreasonably compromise the distributive accuracy of the Census and the addition violates the Enumeration Clause,” Judge George J. Hazel of the US District Court for the District of Maryland held in April.
Francisco stressed in court briefs that the citizenship question was legal and that “nothing in the record supports the district court’s extraordinary charge that the secretary of commerce” lied about his rationale for the decision.
