Supreme Court Appears To Lean Toward Allowing Census Citizenship Question

Apr 23, 2019
Originally published on April 25, 2019 5:28 pm

Updated April 25 at 5:28 p.m. ET










Unclear motivation behind the question











The limits of Ross' discretion






The path to the Supreme Court










Looming deadlines





Copyright 2019 NPR. To see more, visit


At the U.S. Supreme Court today, the newly constituted conservative majority seemed to signal strongly that it will uphold the Trump administration's addition of a citizenship question to the 2020 census. In adding the question, the administration overruled the advice of the top statisticians and scientists at the Census Bureau. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: The Census Bureau itself has warned that the addition of the citizenship question would mean that at least 6.5 million fewer people would fill out the census form in 2020 and that the undercount would mainly affect areas that have large numbers of Hispanics and other immigrant populations. On the steps of the Supreme Court today, politicians and civil rights groups laid out the consequences. Here's Dale Ho of the ACLU.


DALE HO: It will so severely damage the accuracy of the census that six states are at risk of losing a seat in the House of Representatives - California, Florida, Texas, Arizona, Illinois and, of course, New York.

TOTENBERG: Julie Menin is director of the census for New York City.


JULIE MENIN: We are a city of 3.2 million immigrants. We're fighting for our share of over $800 billion of federal funds that are allocated to cities and states across the country.

TOTENBERG: Inside the Supreme Court chamber, the justices veered from obscure statistical analysis to veiled fury. Justice Sotomayor, the court's first and only Hispanic member, called the addition of the question, quote, "a solution in search of a problem." But throughout, the court's conservatives seemed untroubled by the controversial decision to add the question. Not once did any of them suggest that the secretary of commerce, Wilbur Ross, had exceeded his authority. In fact, Justice Kavanaugh at one point characterized the census statute as giving the secretary huge discretion as to what to put on the form.

The conservatives peppered New York Solicitor General Barbara Underwood with questions you might not expect. Conservatives usually take the position that international law has no place in analyzing U.S. law. But Justice Kavanaugh wondered if the court should consider the fact that the United Nations recommends that countries ask a citizenship question when they conduct a census and that, in fact, lots of countries do follow that advice. Replied Underwood, the U.N. also recommends that countries should be careful to test questions to make sure that they don't interfere with the population count, and the Trump administration never conducted such a test.

Chief Justice Roberts agreed the main purpose of the census is to count the population. But he noted the census asked all kinds of other things - sex, age - do you own your own house? Do you own a radio? Justices Gorsuch and Alito repeatedly countered that there could be multiple reasons why individuals don't complete a census form. How does the Census Bureau know that it is the citizenship question that causes the break-off instead of the length of the form or some other reason? Answer - because the Census Bureau's smaller survey shows Hispanics were eight times as likely to stop filling out the form when encountering a citizenship question.

The court's liberals left little doubt where they were either today. When the Trump administration Solicitor General Noel Francisco asserted that the courts have no power to review census questions, Justice Breyer interrupted; in other words, we have no role to play, no matter how extreme the government's position. Here, Breyer continued, the secretary was told in three separate studies that adding the question would lead to an undercount. I haven't seen any evidence to contradict that. Justice Kagan: the secretary can deviate from his expert's recommendations and from his expert's bottom-line conclusions. But the secretary needs reasons to do that. I searched the record, and I don't see any reasons.

Ultimately, Francisco replied, this matter boils down to whether you think the secretary's decision was a reasonable one. Or put another way, he said the census is always trading off information and accuracy. Kagan was not satisfied. It did really seem like the secretary was shopping for a need to justify adding the citizenship question, she said. He goes to the Justice Department, which says we don't need the information. He goes to the Department of Homeland Security. They don't need anything. He goes back to the Justice Department, makes clear he's going to call the attorney general. And finally, the Justice Department says, OK. We can give you what you want - a request to add the citizenship question.

Continued Kagan, her voice rising slightly, you can't read this record without sensing this need for the citizenship question is a contrived need. Francisco was unruffled, saying, it is quite common for new Cabinet secretaries to come into office with ideas to discuss with their staff to see if there's a legal basis for them. At the end of his argument, Francisco told the justices that if they rule against the citizenship question, quote, "you are effectively empowering any group in the country to knock off any question on the census if they simply get together and boycott it." Justice Sotomayor, her voice smoldering with anger, General, she growled, are you suggesting that Hispanics are boycotting the census? Not in the slightest, replied the solicitor general. But he didn't back down.
