In a 5-4 decision, the Supreme Court ruled that the reason the Trump Administration gave for wanting to add a citizenship question to the 2020 Census was indeed pretextual. (Accepted synonyms for pretext: excuse, guise, ploy, ruse, cover story, red herring.)
Here’s Chief Justice John Roberts, in his opinion (in which he was the deciding vote), summing it up better (and gentler) than we ever could, referring to Commerce Secretary Wilbur Ross:
“Several points, considered together, reveal a significant mismatch between the decision the Secretary made, and the rationale he provided.”
In other words, Ross is a liar.
All the other Conservative Justices, including Trump’s two appointees, Gorsuch and Kavanaugh, would’ve let Trump have his way, despite the easily provable lies about why the citizenship question was being put there in the first place.
But Roberts drew the line (at least for now) where it needs to be drawn: at out-and-out bald-faced lying of a form completely disrespectful of U.S. citizens and the courts. We think University of Texas Law Professor Steve Vladeck aptly describes the process leading to the decision:
And here’s the independent Scotusblog, summing up the significance of the decision better than we ever could:
As we’ve asserted before: this has nothing to do with whether you think there should be a citizenship question on the census or not. This has to do with a pattern of lying, and than trying to cover up lies that have become an endemic part of this administration. Starting from the top down. Period.
But, there is a catch that theoretically could give Trump some daylight. And that’s this: Trump’s folks have been pushing the Supreme Court for a fast-tracked decision, whining that if they didn’t have one by the end of June, it’d be too late to add the citizenship question to the census. They’ve said they’ve got to start printing by the beginning of July in order to get it out in time. But could that deadline too be a lie? Because Chief Justice Roberts left the door open to including the question if it was for a legit reason, or at least not provably a ploy.
Which means if the hard-and-fast July 1 no-questions-about-it deadline actually isn’t, Trump might be poised to take another run at the Court. (Or around it.) And in fact, he already is. Within hours of the Supreme Court’s decision, he Tweets:
We don’t know the answer at this point, nor do a lot of legal reporters and scholars.
Case in point: two separate pieces, both appearing in Slate, by two of our favorite legal writers, with completely opposite conclusions. Mark Joseph Stern concludes “the citizenship question is probably dead”. But Rick Hansen meanwhile says Trump might be able to squeeze out more time, come up with an answer that’s pleasing to the court (like he did with the Muslim/travel ban), and still manage to squeeze it in to the Census. Both are excellent reads.
Unfortunately, we tend to lean toward Rick Hasen’s version of how this will most likely play out. At the same time, this masterful analysis in the Los Angeles times predicts the exclusive of the census question as the “likely…effect of blocking the addition of the citizenship question”.
And the media played a huge role in getting to where we are today: without intense and scrupulous reporting on the subject, much of the evidence used by Justice Roberts in rendering his decision might never have been revealed.
The one thing we can pretty comfortably unequivocally predict is that Commerce Secretary Wilbur Ross will soon be gone. Ross couldn’t even pull off something so simple as covering up the true reason for the census question, which was to potentially disenfranchise voters, and reduce population numbers in typically urban, typically Democratic-leaning areas. Remember what happened when Secretary of Health and Human Services after he failed to muster the votes to get Obamacare repealed? So Ross is out, almost for sure. Trump’s distracted this week; attending the G-20 economic summit in Osaka, Japan. But as soon as he’s back…
Speaking of disenfranchising voters, the Supreme Court also ruled it has no authority to intervene against politically partisan gerrymanders. While the Court tried to make the decision look balanced in its impact by zeroing in on a Republican-led gerrymander in North Carolina, and a Democrat-led gerrymander in Maryland. Of course, the impact won’t be even like that, because it’ll immediately carry over into states like Ohio and Michigan, where gerrymandered districts were engineered by and heavily favor Republicans.
Chief Justice Roberts, again the deciding vote in a 5-4 decision, again writes the majority opinion. It’s mostly about how it’s a political, not legal question. And while “excessive partisanship in districting leads to results that reasonably seem unjust”, there are political solutions available, including involving independent redistricting commissions to draw voting maps.
He writes there are “no legal standards discernible in the Constitution” for making judgements about fairness in terms of establishing voting districts, thus:
“Any judicial decision on what is “fair” in this context would be an ‘unmoored determination’ of the sort characteristic of a political question beyond the competence of the federal courts.”
And he quotes the late Justice Antonin Scalia, who wrote:
“‘Fairness’ does not seem to us a judicially manageable standard.”
So in a way, all this is no surprise, since the Supreme Court historically has not interfered with gerrymandering except when it was provably being done solely on the basis of race. Which even if it is, will probably never be provable anymore, since any politicians doing it for any reason already abundantly know that’s a no-no.
Expectations of a different result this time around came only out of a hope that the practice has now gotten so out of hand and has so decisively skewed representation in many states, the Court might step in and do something about it, since it does have a role in ensuring U.S. citizens’ votes mean something. But as Roberts himself points out “We have never struck down a partisan gerrymander as unconstitutional”.
Here’s part of what Justice Elena Kagan wrote in her dissenting opinion:
“The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections.”
Which means with this decision, the partisan divide in this country is gonna get even deeper. Unless…
There is one ray of hope, which we’ll talk about tomorrow or a little later depending on developments from the economic summit of world leaders.