“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. 

In a splintered June decision in Department of Commerce v. New York, the Supreme Court ruled 5-4 that the Trump Department of Commerce had the authority to properly include a citizenship question on the 2020 census. But a different majority of Chief Justice Roberts and the four Court moderates ruled that Commerce had improperly contrived the rationale for including the question, which at least critically delayed its inclusion on the census. Trump justices Gorsuch and Kavanaugh cast key votes to enable the addition of the question and joined a bitter dissent from the holding that Commerce contrived its rationale, claiming that it contradicted what should have been “deferential review of discretionary agency decisions.”

Earlier in 2019, a federal district court ruled that Trump-appointed Commerce Secretary Wilbur Ross had improperly decided to include a question on the 2020 census asking respondents if they are U.S. citizens. At the urging of the Justice Department, the Supreme Court agreed to review the decision directly, rather than the ordinary course of first having the decision reviewed by a federal appellate court. This was because the administration claimed that printing of the census must begin by the end of June. Chief Justice Roberts wrote the opinion, different parts of which were joined by different members of the Court.

A 5-4 majority of the Court, made up of Chief Justice Roberts and the four moderates, agreed with the district court that Secretary Ross had added the citizenship question dishonestly. When he announced his decision to include the question in 2018, Ross claimed it was because the Justice Department had asked him to do so in order to better enforce the Voting Rights Act (VRA). As Roberts’ opinion explained in detail, however, there was strong evidence in the record that this rationale was “pretextual.” For example, the record showed, Ross began considering adding the question shortly after taking office with “no hint” that it was because of VRA enforcement. It was only after Ross directly contacted the Attorney General that Justice made the request in a letter, and the Justice Department letter “drew heavily on contributions from Commerce staff.” In short, Roberts concluded, the “sole stated reason” for the question was “contrived.” Despite the deferential nature of courts’ review of such decisions, he further pointed out, the requirement that agencies offers “reasoned explanation” for their actions means that they must “offer genuine justifications for important decisions,” which was clearly absent in this case. Accordingly, Roberts and the four moderates agreed that the case should be sent back to the agency for a genuine explanation for its decision. Kavanaugh and Gorsuch joined Thomas’ harsh dissent, and Alito dissented as well.

But a different 5-4 majority, including Justices Kavanaugh, Gorsuch, Alito, and Thomas, partly reversed the district court and ruled that Commerce had the authority and the evidence to include the citizenship question, and that it would be a “reasonable exercise of discretion” to do so. The Court’s four moderate justices strongly dissented from that part of the decision in an opinion by Justice Breyer. As he explained, there was “no serious dispute” that adding a citizenship question would “diminish the accuracy” of the census count by probably causing a “disproportionate number of noncitizens and Hispanics to go uncounted.” The record also demonstrated, Breyer went on, that asking the question “would produce citizenship data that is less accurate, not more”, and would cause a severe risk of undercounting and harmful consequences, particularly to people of color, low-income households and Latinx and immigrant communities, which the Secretary failed to “adequately consider.” The decision was accordingly “arbitrary, capricious, and an abuse of discretion.”

At this point, no one knows whether the Court’s decision will preclude Commerce from asking a citizenship question on the 2020 census, or whether the agency will somehow take action to justify that question to the satisfaction of a majority of the Supreme Court, despite earlier Commerce claims that the forms must be finalized by the end of June, 2019. Proceedings are taking place in a lower court on that issue. But if it had been up to Kavanaugh, Gorsuch, Thomas, and Alito, the Court would have excused blatant dishonesty by the Trump administration and already approved the citizenship question.