Census and Sensibility Commentary
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Census and Sensibility

On the last day of its 2018-2019 Term, the Supreme Court decided in Department of Commerce v. New York that Commerce Secretary Wilbur Ross could not add a question about citizenship to the 2020 Census solely on the basis of the “contrived” and “pretextual” reason he cited (the need to better enforce the Voting Rights Act).  Since then, most observers focused on whether the Administration would be able to thread the decisional needle on remand and justify the citizenship question on a non-pretextual basis.

Now, after flirting with ways to do that, the Administration has (apparently) thrown in the towel.  So, the focus can be on what the Census decision means for governmental integrity, access to the courts, administrative rationality and the Court’s role in promoting the rule of law.

An Important Stand for Integrity

First, the Census decision is a crucial commitment to minimal honesty in government.  Thanks to extensive district-court-ordered document production and meticulous fact-finding, the administrative record revealed, as Chief Justice Roberts’ majority opinion put it, “a significant mismatch between the [Secretary’s] decision and the rationale he provided.”  Roberts’ opinion credited “evidence…that the Secretary had made up his mind to reinstate a citizenship question ‘well before’ receiving” a logically dubious Justice Department request instigated by Ross’ staff.

In part of the opinion joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, the Chief Justice sent an important signal that government officials can’t just lie to reviewing courts and the public.  Roberts didn’t explicitly say that the Secretary’s real interest was causing a significant undercount among noncitizens and Latino-citizen households and skewing the number and districting of House seats in a Republican direction; but between the lines the judicial reviewers shared the widespread skepticism of others.  As Roberts’ opinion put it, if judicial review of administrative action is to be “more than an empty ritual,” deference to administrative officials does not require courts to exhibit “naivete’.”

Not Avoiding the Merits

A second, important aspect of the Census decision is the Court’s declining to endorse either of two rationales that would have avoided the merits, yet green lighted the citizenship question.  The Administration urged the justices to hold that challengers lacked standing to sue or that the Commerce Secretary’s discretion was so wide that no reviewable law applied.  Rejecting both invitations reinforced the availability of judicial forums.

The consensus that the challengers had standing is especially important because it declined to add mass to a previous decision (Clapper v. Amnesty International) reflecting a cramped view that litigants can’t access federal courts with “self-inflicted” injuries even if they legitimately suspect that governmental actors will adversely target them.

Too Much Deference Elsewhere

A third, but in my view unfortunate, facet of the Census case is portions deferring too much to other aspects of Secretary Ross’ decision-making.  The Chief Justice seemed to discount Census staff concerns about the gravity of the Census undercount.  And Roberts seemed too quick to credit as rational the Secretary’s overruling of his expert subordinates’ view that alternative methods would produce better citizenship data without risking suppressing participation.

Justice Breyer’s concurring opinion provided a more nuanced and persuasive assessment.  But Roberts discounted Breyer’s careful analysis as “subordinating the Secretary’s policymaking discretion to the Bureau’s technological expertise.”

In one sense, this dispute is nothing new.  It reflects two positions on a deference-versus-hard look continuum underlying decades of administrative-law cases.  But opinion portions taking such a deferential view – and an unfortunate sentence stating that administrative decisions “are routinely informed by unstated considerations of politics,” along with other policy concerns – could, in such a high-profile case tainted with pretext and partisanship, send the wrong signal to lower courts.

The Chief Justice as Institutional-Reputation Enhancer

The fourth, and probably most important, dimension of the Census case is its example of Chief Justice Roberts acting contrary to political or ideological expectation.  Although appointed by a Republican president and typically labelled as “conservative,” Roberts cast a critical fifth vote on the ultimately decisive pretext issue by aligning with “liberal” justices.  (The quote marks reflect my continued attempt to point out that, although politics and ideology play important parts in judicial decision-making, they are often not a solely sufficient explanation.)

Roberts’ choice to create a five-justice truth squad standing up for the role of courts in promoting the rule of law is yet another example of how the Chief Justice at critical junctures has placed decisive importance on the Court’s legitimacy and stature as an honest broker among polarized partisans.

Both in structure and in spirit, the Census decision resembles the Chief Justice’s 2011 decision (in NFIB v. Sebelius) to save the Affordable Care Act from a constitutional challenge to its individual mandate – and avoid a perception that the Court was reflecting crass politics.  In the Obamacare case, Roberts joined four other “conservatives” to hold that the individual mandate exceeded Congress’ Commerce Power.  Then, Roberts shifted gears and joined four “liberals” to validate the mandate via an alternative Taxing-Power theory.

So, too, does the Census case start by suggesting that the basis on which the Administration later sought to shore up the Secretary’s decision to add a citizenship question would be rational and non-arbitrary — only to switch gears (and changing concurring justice partners) and hold that Ross’ stated rationale was not authentic.

Thankfully, the Chief Justice is periodically willing to be a swing voter in cases posing special danger that the justices will be perceived as mere politicians who wear black robes.  And this may suggest how Roberts can be persuaded to join a less-ideological approach in future cases — for example, if four other colleagues were inclined to overrule, as opposed to just incrementally weaken, the 1972 Roe v. Wade assertion of strong abortion-choice rights.  The Census case further illustrates how another change in the Court’s personnel could alter the current delicate balance on institution-critical matters.

But, whatever the future holds, the Census case shows many important sensibilities (albeit, with some regrettable insensibilities) toward rationality and the rule of law.


Professor Glenn C. Smith teaches constitutional law at California Western School of Law in San Diego.  He is the principal co-author of Constitutional Law for Dummies [John Wiley & Sons, Inc. 2012]. His monthly “Constitutional Context” audio podcasts are hosted by SDSU’s Osher Lifelong Learning Institute (and available by app from iTunes and other major service providers).


Suggested citation: Glen C. Smith, Census and Sensibility, JURIST – Academic Commentary, July 23, 2019, https://www.jurist.org/commentary/2019/07/census-and-sensibility


This article was prepared for publication by Michael Barber, a JURIST Senior Editor. Please direct any questions or comments to him at commentary@jurist.org

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