What the Supreme Court Said About the 2020 Census Citizenship Question

Immigration activists rally outside the Supreme Court on Tuesday. Immigration activists rally outside the Supreme Court on Tuesday. J. Scott Applewhite/AP

The fight over the Trump administration’s effort to add a citizenship question to the next census—a push that has given the constitutionally mandated decennial count an unusually emotional charge—has reached the U.S. Supreme Court.

On Tuesday, the court’s justices heard oral arguments in cases related to the census, which saw debates over highly technical questions about data. The government is arguing that that U.S. Commerce Secretary Wilbur Ross has license to add a citizenship question to the 2020 Census. A number of states, counties, and nonprofits say that Ross acted capriciously in violation of administrative law, and that a citizenship question undermines the Constitution’s Enumeration Clause, which orders a complete count of every person residing in the country.

Both the recently concluded trials in Maryland and New Yorkresulted in setbacks for the Trump administration. But the Supreme Court could tilt the question, and the census, in the president’s favor.

Predicting the Supreme Court’s behavior is more art than science, especially between Chief Justice John Roberts’s migration to the court’s ideological center and the installation of Neil Gorsuch, a new justice, and Brett Kavanaugh, a rookie. All the conservatives who spoke today drilled down into questions of modeling and regressions, largely eschewing the matter of how Ross came to add the citizenship question or what effect it might likely have on Hispanic communities. Noel Francisco, solicitor general for the U.S. Department of Justice, presented the government’s case by largely relying on the academic notion that adding any question to the census will necessarily produce a tradeoff between information and accuracy. In general, conservatives on the court appeared receptive to that argument.

Among the court’s liberals, Justices Sonia Sotomayor and Stephen Breyer were the most vocal during oral arguments. “There’s no doubt people will respond less,” Sotomayor said, regarding a census questionnaire that includes a citizenship question. “If you’re talking about predictions, this is about 100 percent that people will respond less.”

Francisco argued that if the court accepted the respondents’ claims, then courts would be forced to review any and every change to the questionnaire, since there is always a potential tradeoff between acquiring more information and gathering accurate responses—a sort of civic uncertainty principle. Breyer questioned whether this tradeoff means that the court should have no oversight.

“Suppose [the commerce secretary] says I’m going to have them all surveyed in French,” Breyer said. “We have no role to play, no matter how extreme?”

In March 2018, when Ross first announced that the Census Bureau would add a citizenship question, he claimed to do so solely in response to a request from the Justice Department. Later evidence revealed that Ross had in fact consulted with senior advisors from the White House, namely then–senior advisor Steve Bannon, and largely engineered the DOJ’s request himself.

Ross’s misleading testimony notwithstanding, the Justice Department formally tendered the request in late 2017, asking for the citizenship question in order to help the department enforce the Voting Rights Act. In response, the Census Bureau produced a series of options. Alternative A would make no changes to the census but would produce block-level estimates, Alternative B would add the citizenship question, and Alternative C would rely on changes to existing administrative data.

The bureau estimated that the administrative data path (Alternative C) would provide higher-quality data than the citizenship question, while the question alone (B) would cost the most and produce the highest non-response rate. Ross opted for his own solution—D, a plan to combine Alternatives B and C.

Sotomayor and Justice Elena Kagan asked the solicitor general to explain why Ross ignored the Census Bureau’s bottom-line conclusion about which option to take. A cabinet secretary can deviate from his department’s expert recommendations and bottom-line conclusions, Kagan said, but he must provide reasons to do so. This argument relies on the Administrative Procedures Act, which authorizes courts to invalidate agency actions considered to be arbitrary or capricious.

Kagan said that it seemed as if Ross were “shopping for a need.” Sotomayor called the citizenship question a “solution in search of a problem.”

“You can’t read this record without sensing that the need is a contrived one,” Kagan said.

The solicitor general said that the liberals’ position would effectively empower any group in the country to knock a question off the census by boycott. Sotomayor asked whether Francisco really meant to say that Hispanics were boycotting the census.

Conservative justices, on the other hand, appeared to focus on a number of different arguments that had little to do with Ross’s motivations and had much more to say about data standards.

Justice Samuel Alito zeroed in a choice before the secretary: whether to use a question that could produce direct information about citizenship from the most respondents or to rely on a model that census experts might trust, one that had not yet been built. Douglas Letter, who argued in support of respondents on behalf of the U.S. House of Representatives, said that taking a step that undermines the count—even for an important reason, like enforcing the Voting Rights Act—violates the Constitution’s Enumeration Clause, which outlines the express purpose for the census.

Kavanaugh and Gorsuch both noted that the United Nations recommends that countries ask a citizenship question, and that several other countries, including Australia and Germany, ask their people such a question. But it matters how that question is asked and at what cost, Barbara Underwood, solicitor general for New York, responded. And during his argument, Letter argued that the Enumeration Clause in the Constitution is a higher concern before the court than practices elsewhere in the world.

In another back-and-forth, Alito and Dale Ho, director of the ACLU’s Voting Rights Project, got lost on a winding technical point of order about how granular census data are at the block level.

In 80 minutes of arguments with the solicitor general and three representatives for the respondents, the justices appeared to be have different questions in mind. Conservatives centered on the rigor of the citizenship question data; liberals debated its propriety.  

“The question is why asking the question is better when you know that asking the question will lead to lots of non-responses and lots of false reporting?” Kagan said.

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