Trump’s mistake on the census citizenship question
By: Michael Greiner
Tags: Government, Supreme Court, Politics, Racism, Civil Rights

By Paul Morse — White House photo by Paul Morsehttps://georgewbush-whitehouse.archives.gov/news/releases/2005/09/images/20050905_p090505pm-0066jpg-515h.html, Public Domain, https://commons.wikimedia.org/w/index.php?curid=589065

John Roberts points to a cynical path

The response of many Supreme Court watchers when the Court handed down two extremely political decisions was that Chief Justice John Roberts was successfully threading the needle. With his decisions in a gerrymandering case and the census citizenship question case, Roberts made nobody happy, but appeared to solidify his position regarding the Supreme Courts apolitical nature.

In the case of Rucho v. Common Cause, the Court held in an opinion authored by the Chief Justice that when states draw Congressional districts, that process is beyond the decision-making capability of the U.S. Supreme Court. Remember that under our Constitutional framework, the three branches of the Federal government are coequal and have equal responsibility for upholding the Constitution. Similarly, the states delegated certain authority to the Federal government, reserving all other authority to themselves.

In this case, Roberts pointed out that the Constitution grants the authority to draw Congressional districts to the state legislatures. As a result, oversight of that authority does not fall under the purview of the U.S. Supreme Court, a branch of the Federal government.

The plaintiffs in the case had argued that through gerrymandering, the rights of minority voters was being diluted, thus violating the equal protection clause of the Constitution. However, since Roberts also authored the decision striking down many of the anti-racism policies of the Voting Rights Act in Shelby County v. Holder, it is probably not surprising that this argument did not hold water with him. The clear holding in Shelby County and Rucho is that the Court will not protect minorities from the power of the majority.

On the other hand, liberals celebrated Roberts’s opinion in Department of Commerce v. New York, in which he denied the administration’s request to include a citizenship question on the census.

As became clear when certain documents from a Republican political operative were leaked, the reason Republicans sought to add this question to the census was to diminish Democratic power. Remember that Congressional districts are allocated to the states based upon census results, and Democratic districts tend to have a larger number of immigrants as inhabitants who might be scared off from responding to a census questionnaire asking about their citizenship.

But Roberts’s opinion was narrow. He did not hold that such a question was illegal. His opinion simply held that the administration had not provided a truthful explanation of why the question was desired. The administration had claimed it wanted the question added to assist in administration of what remains of the Voting Rights Act. That explanation was laughable, and the Roberts Court held that it was pretextual and therefore invalid.

But when these two opinions are read together, a chilling conclusion comes to mind.

In the gerrymandering case, the Roberts Court held that it would not step in to check the political power of the majority. On the other hand, it held in the census question case that it would not allow a citizenship question since its justification was mere pretext. Reading these decisions together indicates that had the administration simply stated its real intent from the get go, the Court would not have stopped it from exercising this power. That is a scary realization.

Of late, Trump has dropped the pretext and admitted that the real reason he wanted the citizenship question was to assist the political fortunes of Republicans in redistricting. The day after the Supreme Court handed down these two decisions, the Justice Department announced it was giving up the effort to add the citizenship question to the census. Then, the Department reversed its position the very next day.

Swearing in of William Barr as Attorney General by Chief Justice John Roberts in the Oval Office. By Official White House Photo by Tia Dufour — https://www.justice.gov/opa/pr/william-p-barr-confirmed-85th-attorney-general-united-states, Public Domain, https://commons.wikimedia.org/w/index.php?curid=76585802

Since then, Attorney General William Barr has stated that he sees a legal path to adding the citizenship question to the census. My fear is that he read these two opinions from the Chief Justice in the same way that I did, and he will try to take this approach, something that will satisfy the objections Roberts raised in his Department of Commerce opinion. In so doing, the administration may well succeed in its cynical ploy.

At its best, the Supreme Court played the role of protector of minority rights. And by minorities, I’m not simply referring to racial or ethnic ones. The majority have the power at the ballot box to protect their own interests. But democracy is not simply a tyranny of the majority. There must be limits to what the majority can do. After all, without such limits, how will minority opinions gain sufficient support to eventually become the majority?

But the Roberts Court appears to take the view that the majority can do whatever it wants when it gains power. If that is the case, who will protect the rights of those outside the majority in the future?

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