High Court Blocks Census Change but Absolves Ross of Violation

Protesters demonstrate outside the Supreme Court on Thursday, celebrating a decision that hampers the Trump administration from adding a citizenship question to the 2020 census. (Photo by TIM RYAN/Courthouse News Service)

WASHINGTON (CN) – Saying that the evidence plainly undercuts the Trump administration’s explanations for adding a citizenship question to the 2020 census, the Supreme Court unanimously affirmed Thursday that the Commerce Department must reconsider the move.

A federal judge who heard the case in New York had gone further, ruling that Commerce Secretary Wilbur Ross had abused his discretion, but the Supreme Court reversed that finding, spurring a partial dissent from the liberal justices.

“The choice between reasonable policy alternatives in the face of uncertainty was the secretary’s to make,” Chief Justice John Roberts wrote for the conservative majority here. “He considered the relevant factors, weighed risks and benefits, and articulated a satisfactory explanation for his decision. In overriding that reasonable exercise of discretion, the court improperly substituted its judgment for that of the agency.”

Roberts’ opinion is deeply fractured, with different factions of the court joining and opposing different parts. In the conclusion, which only the liberal justices joined, Roberts balked at the explanation for the census change offered by the commerce secretary.

Ross, who has less than a year to go now before he will administer the once-a-decade U.S. population count, claimed in 2018 that he added the question at the request of the Justice Department, on the basis that it would better help it enforce the Voting Rights Act.

“Altogether, the evidence tells a story that does not match the explanation the secretary gave for his decision,” Roberts wrote.

“Here the VRA enforcement rationale — the sole stated reason — seems to have been contrived,” the chief added.

Back in New York, U.S. District Judge Jesse Furman found the VRA justification to be nothing more than a pretext, noting that Secretary Ross had been looking into adding the question long before the Justice Department showed interest. Judges in Maryland and California reached similar conclusions, and, because of the need to print the survey soon, the case took the unusual route of bypassing a federal appeals panel to reach the justices in Washington.

“It is rare to review a record as extensive as the one before us when evaluating informal agency action — and it should be,” Roberts wrote. “But having done so for the sufficient reasons we have explained, we cannot ignore the disconnect between the decision made and the explanation given. Our review is deferential, but we are ‘not required to exhibit a naiveté from which ordinary citizens are free.'”

Roberts noted that the whole point of administrative law is “to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public.”

“Accepting contrived reasons would defeat the purpose of the enterprise,” he continued. “If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case. In these unusual circumstances, the District Court was warranted in remanding to the agency.”

Justice Clarence Thomas argued otherwise meanwhile in an opinion joined by Justices Neil Gorsuch and Brett Kavanaugh.

“A court may not set aside an agency’s policymaking decision solely because it might have been influenced by political considerations or prompted by an administration’s priorities,” Thomas wrote. “Agency policymaking is not a ‘rarified technocratic process, unaffected by political considerations or the presence of presidential power.’”

In a separate opinion on behalf of the court’s liberal wing, Justice Stephen Breyer echoed the claim by Congressional Democrats that the citizenship question would cause a disproportionate number of noncitizens and minority populations to go uncounted.

“That, in turn, would create a risk that some states would wrongfully lose a congressional representative and funding for a host of federal programs,” Breyer wrote. “And, the secretary was told, the adverse consequences would fall most heavily on minority communities. The secretary decided to ask the question anyway, citing a need for more accurate citizenship data.”

Breyer and his colleagues agreed with the high court’s ruling for further review but said they would have affirmed the finding that Ross violated the Census Act by abusing his lawful authority.

Dissatisfied with the secretary’s explanations, they warned that a miscount of even a few hundred thousand citizens would reap grave consequences.

Thomas meanwhile chided his colleagues for basing their decision on “the din of suspicion and distrust that seems to typify modern discourse.”

“Crediting these accusations on evidence as thin as the evidence here could lead judicial review of administrative proceedings to devolve into an endless morass of discovery and policy disputes not contemplated by the Administrative Procedure Act,” Thomas wrote. “Unable to identify any legal problem with the secretary’s reasoning, the court imputes one by concluding that he must not be telling the truth.”

Gathered on the courthouse steps this morning, a group of roughly 30 activists from several different groups held signs, chanted and sang in support of the census decision.

“Let freedom ring – count me in!” the group chanted in call and response.

The American Constitution Society applauded today’s result as well but cautioned that “no one should be popping any champagne corks.”

“In its decision, the Supreme Court essentially invited the Trump administration to provide a better public explanation for its political manipulation of the census,” the society’s president, Caroline Fredrickson, said in a statement. “In doing so, it left the door open to future dirty tricks from an administration that has already proven itself untrustworthy on issues of races and equality.”

Fredrickson called it an open question “whether the Trump administration will now race to clear the court’s hurdle in time to include this question on the 2020 census.” 

If the president’s Twitter account is any indication, that race is already on.

“Seems totally ridiculous that our government, and indeed Country, cannot ask a basic question of Citizenship in a very expensive, detailed and important Census, in this case for 2020,” Trump tweeted. “I have asked the lawyers if they can delay the Census, no matter how long, until the United States Supreme Court is given additional information from which it can make a final and decisive decision on this very critical matter. Can anyone really believe that as a great Country, we are not able the ask whether or not someone is a Citizen. Only in America!”

Speaking to reporters Thursday, Ceridwen Cherry, staff attorney for the ACLU’s Voting Rights Project, dismissed the possibility that the administration would have time to come up with a new rationale and take the case back to the Supreme Court before the census needs to be finalized.

“We really don’t see a timeline on which this could be revisited,” Cherry said. “Our view is that the court spoke and the Census Bureau needs to start printing.”

The administration has said it needs to begin printing census forms by the beginning of July.

Though Thomas cast the decision today as “a departure from traditional principles of administrative law,” he took heart in its limitations.

“Hopefully it comes to be understood as an aberration — a ticket good for this day and this train only,” Thomas added.

In yet another partial dissent, Justice Samuel Alito said no court holds the authority to “stick its nose” into the issue.

“It is a sign of our time that the inclusion of a question about citizenship on the census has become a subject of bitter public controversy and has led to today’s regrettable decision,” he lamented.

While acknowledging that courts can review the constitutionality of the citizenship questions, Alito said precedent requires they allow co-branches of government to determine whether its inclusion in 2020 was lawful.

“The secretary is also accountable to Congress with respect to the administration of the census since he has that power only because Congress has found it appropriate to entrust it to him,” Alito wrote. “And the secretary is always answerable to the president, who is, in turn, accountable to the people.”

Late last month, after the Supreme Court had already heard oral arguments, a nonprofit represented by the same attorneys as the challengers obtained evidence suggesting that a redistricting expert who worked with the GOP “played a significant role” in getting the question on the census in an effort to benefit Republicans.

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