Step 2: Create a pretext.
In this case, Ross lied to Congress, saying the Justice Department wanted the citizenship question added to help enforce the Voting Rights Act — a claim three lower courts dismissed as pretextual. In fact, emails showed that Ross (with White House encouragement) was the one who pushed for the citizenship question and quietly dragooned the Justice Department into asking for the question to be added.
Step 3: Muddy the waters.
In this case, Solicitor General Noel Francisco and conservative justices raised doubts about the statistical capabilities of the Census Bureau, claiming it couldn’t accurately “quantify” the damage that would be done by adding a citizenship question because the alternative way to get such information was an “untested statistical model.” Why “untested”? Because the administration denied its experts’ requests to run tests before leaping to a decision.
Step 4: Blame the victim.
Francisco, the top Trump administration lawyer, saved this nastiness for the final minute of the 80-minute argument. If the court disallows the citizenship question, he said, “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,” he said, raising the possibility of a boycott by gender-nonbinary people.
Justice Sonia Sotomayor, the only Hispanic on the high court, interrupted angrily. “Are you suggesting that Hispanics are boycotting the census? Are you suggesting . . . that they don’t have a legitimate fear?”
“Not in the slightest, Your Honor,” replied Francisco, who had done exactly that.
For decades, the decennial census sent to each household hasn’t included a citizenship question (it’s instead asked on surveys), and for good reason. Latino residents — legal or illegal — tend to resist such questions out of an (unfounded) fear the government might use the information against them or their relatives. Census Bureau research has projected a drop of at least 5.1 percent from noncitizen households if the question is added, part of an estimated undercount of 6.5 million people. This contradicts the Constitution’s requirement for an “actual enumeration of the people” — not just citizens.
A lower-court judge ruled that the administration committed a “veritable smorgasbord” of violations in adding the question. But the conservative justices seemed willing to overlook Ross’s lie and the administration’s dubious justifications.
Francisco began with a deception, saying the citizenship question “has been asked as part of the census in one form or another for nearly 200 years.”
Justice Ruth Bader Ginsburg asked Francisco the same question three times before he acknowledged that the citizenship question had been abandoned in 1960, in part, because it would depress the count of noncitizens.
“Well, sure, Your Honor,” Francisco granted, then quickly explained why “we don’t think this is really subject to judicial review.”
So the administration is free to disregard millions of Latinos in the census — and the courts have no say.
This seemed to be fine with Republican-appointed justices. Justice Samuel Alito said he was satisfied that the accuracy would be 98 percent if the citizenship question were asked (never mind those 6 million or so left out).
Trump’s two appointees developed a newfound fondness for foreign law: Justice Brett Kavanaugh pointed out that the United Nations recommends a citizenship question, and Justice Neil Gorsuch said “virtually every English-speaking country” asks one.
More disturbing were their counterfactual theories claiming some other, unknown variable might cause Latinos not to answer the census. (No such notions appeared in the case record, and census experts had already controlled for other variables.)
Alito challenged “the legitimacy of concluding that there is going to be a 5.1 percent lower response rate because of this one factor,” adding, “maybe there is something more there.”
“There could be multiple reasons,” Gorsuch concurred.
Justice Stephen Breyer derisively suggested the real cause might be the presence of pet dogs or cats.
The justifications all sounded a bit “contrived,” as Justice Elena Kagan put it, like so much “post-hoc rationalization” of a decision made for another reason.
When you consider that the indisputable effect of adding the citizenship question will be to suppress Latinos’ census participation — and by extension to suppress their political clout — it is difficult not to be cynical about what that reason is.