It looks like the Trump administration’s effort to rig the 2020 Census to take funding and power away from immigrant communities — and make no mistake, that’s exactly what it is and nothing more — may very well succeed. The Post reports:
The Supreme Court’s ideological divide was on full display Tuesday, and it seemed from their questioning that the court’s conservatives were likely to defer to the Trump administration on adding a question concerning citizenship to the 2020 Census form sent to every American household. [...]
The outcome will be significant, given that the census ultimately helps determine congressional representation, how the federal government allots billions of dollars in funding and more. The census hasn’t asked a citizenship question of each household since 1950, and three federal district court judges have forbidden the Commerce Department from adding it to the upcoming count.
Let me catch you up if you haven’t followed this issue. When the Trump administration took office, they decided to add a question on whether you or anyone in your household is or isn’t a citizen to the 2020 Census. Everyone knew exactly what the result would be: Immigrants, both legal and undocumented, would be more reluctant to answer the census at all, particularly given the aggressively anti-immigrant policies of this administration.
The result, as every demographer and statistician who is associated with the census or has worked with its data agrees, will be an undercount of places where there are lots of immigrants, meaning they’ll get less in federal funds and less political representation.
Which is exactly the goal. But the administration had to come up with a pretext, a rationale for adding the question that didn’t sound like “We want to enhance the power of Republicans.” The one that Commerce Secretary Wilbur Ross invented was that they needed it to enforce the Voting Rights Act, which is kind of like Jack the Ripper saying the reason he carries a knife is so he can protect women.
To create this cover story, Ross asked the Justice Department to “ask” the Commerce Department (which oversees the Census Bureau) to add the citizenship question, so there could be a paper trail supporting the false story. Though they were reluctant at first, eventually Justice supplied the letter. Then Ross lied to Congress, insisting that the whole idea was the Justice Department’s in the first place. He also lied about having spoken to the White House about the subject; in fact, he discussed it with then-chief strategist Stephen K. Bannon and, at Bannon’s suggestion, vote suppressor extraordinaire Kris Kobach.
In a different world, Ross would be prosecuted for perjury. At the very least, he ought to get laughed out of court for his assertion that this all has its roots in the Trump administration's deep concern about proper enforcement of the Voting Rights Act.
But as we saw in Tuesday’s oral arguments, there is no pretext too disingenuous for the court’s conservatives to treat it as genuine, if it’s coming from Republicans.
In those oral arguments, it was clear that the conservatives on the court are all in favor of adding a citizenship question. If there was any hope to forestall that possibility, it lay in the slim chance that Chief Justice John G. Roberts Jr. might side with the liberals. But as Ian Millhiser noted, “Roberts appeared unsympathetic to the challengers’ arguments — and he asked a handful of questions that suggest he will also back the Trump administration’s play.”
This should have been no surprise at all. If Roberts joins the other conservatives, it will be in keeping with my theory about him, which is that while he sometimes sides with the liberal justices on a particular case, he does so only when he perceives the need to save the Republican Party from itself, constraining its extremism when it would do too much political damage to the conservative cause.
This theory would predict, for instance, that he will vote to uphold the Affordable Care Act in the GOP’s ludicrous lawsuit seeking to strike the law down in its entirety. After all, he knows that taking away health care from tens of millions of Americans in one fell swoop, not to mention yanking away protections for people with preexisting conditions, would be a political catastrophe for the party.
But this case isn’t like that. The arguments are a little arcane. The Republican position has a surface plausibility to it if you know nothing about the topic. There won’t be screaming headlines when the decision is handed down. And in the end most voters won’t be aware it ever happened. The outcome will benefit the Republican Party, and the political fallout will be minimal. Therefore, Roberts may well support the administration.
And we know what the results will be. Immigrant communities will be undercounted. Resources and power will be shifted from them to white communities. It will be one more thumb on the scale for the GOP, part of a broad campaign to rig the political system that includes a sweeping vote suppression effort aimed at African Americans and Latinos. And minority rule — the ability of Republicans to maintain power even when most Americans oppose them and their agenda — will be strengthened.
Which goes to show that when you’ve got five partisan justices on the Supreme Court, you can do just about anything you want.