By Jessica Levinson, professor at Loyola Law School
The Supreme Court is about to start looking a lot more like a political branch. Indeed, in a decade or less, we may look back at this time as the era in which the court lost any imprimatur of judicial independence.
The court’s upcoming decision as to whether the Department of Commerce can add a question about citizenship to our national census will provide us with some important tea leaves for determining whether the current court is becoming the handmaiden of conservative politicians. The court is expected to rule by the end of June.
New evidence suggests that Secretary of Commerce Wilbur Ross’ decision to add a citizenship question to the census had everything to do with helping Republicans and harming Democrats. These revelations mostly confirm what many observers had long suspected about the true motivations of the Commerce Department. What is more surprising — and revealing — is the fact that none of this is likely to matter to the Supreme Court.
These revelations mostly confirm what many observers had long suspected. What is more shocking is the fact that none of this is likely to matter to the Supreme Court.
The legal issues of the case may sound mundane, but the political stakes are huge. The U.S. Constitution says that Congress must count how many people live in our country. The census, conducted by the Department of Commerce, determines the number of representatives in the House, the distribution of electors in the Electoral College, and the amount of federal funding each state gets. While the commerce secretary is in charge of the census, he or she cannot engage in activities that are arbitrary and capricious. And yet, that is just what Secretary Wilbur Ross has done.
In 2017, Ross disingenuously claimed that the Department of Justice had suggested that the Department of Commerce add a citizenship question to the census to help in enforcing the federal Voting Rights Act. But the idea to add the citizenship question appears not to have originated with the Department of Justice and has nothing to do with enforcing voters’ rights. Meanwhile, many experts believe that adding a citizenship question to the census will lead people in immigrant-heavy areas, including legal and illegal immigrants, to not respond. This inaccuracy is why career experts in the Department of Commerce unanimously recommended that the citizenship question not be included.
This is not a minor issue. The Census Department itself estimates that as many as 6.5 million people could not be counted as a result of adding the citizenship question. And it is not a coincidence that the majority of these 6.5 million people live in areas dominated by Democrats. In fact, we now know, that is in fact the whole point.
Recently discovered documents on the computer of now-deceased Republican operative and redistricting expert Thomas Hofeller indicate that the idea to add the citizenship question actually originated with him, not the Department of Justice. His goal was not to help the Department of Justice enforce the Voting Rights Act, but rather to use this information to allow states to draw legislative district lines based not on the total population, but instead on the number of eligible voters. This would, he wrote, help “Republicans and non-Hispanic whites,” and would clearly hurt Democrats.
The newly unearthed documents do not tell us more than what many already strongly suspected, but they do bring into stark relief why the Trump administration is so determined to add the citizenship question, and how they have lied about it.
During oral arguments in April, the conservative members of the court appeared ready to accept at face value the Department of Commerce’s assertion that the citizenship question will be added to help enforce the Voting Rights Act. It is worth remembering that the conservative wing of the court has not been particularly concerned about the Voting Rights Act in the past. In fact, just six years ago it struck down a key portion of the act designed to protect voters from discriminatory voting laws.
Since that 2013 decision, states and localities throughout the nation have enacted laws burdening the right to vote. States have, for instance, reduced or eliminated early voting, reduced the number of voting centers, purged voter rolls, and implemented stringent voter identification requirements. This was an entirely predictable consequence of the court’s decision.
More recently, a slim conservative majority of the court voted to uphold an Ohio law that took voters off the voter rolls if they failed to both vote in one election and respond to a postcard asking them to confirm their address. The court couched its language in the need to protect the integrity of the electoral process, but the truth is that Ohio’s law disproportionately affects the ability of poor and minority voters to vote. And again, not coincidentally, those people are disproportionately Democrats.
The idea that Ross wants to add the citizenship question to the census to help enforce the Voting Rights Act is a farce, which every court to rule on this issue has recognized.
In other words, the conservative wing of the court has shown no concern about the Voting Rights Act. And the idea that Ross wants to add the citizenship question to the census to help enforce the Voting Rights Act is a farce, which every court to rule on this issue has recognized.
Three lower federal courts have ruled that the Department of Commerce can not add a citizenship question to the census, at least under these circumstances. They all agreed that Ross failed to put forward valid reasons for the addition of the question.
The three lower courts were right. The Supreme Court appears ready to undermine its legitimacy by ignoring reality and context and overturning those decisions.
If this sounds familiar, it is because the court did the same thing last year when it ruled to uphold President Donald Trump’s travel ban. Despite numerous statements by both candidate Trump and President Trump that the purpose of the ban was to bar Muslims from entering the country, the court ignored reality, ignored context, and just looked at the words on the page of Trump’s third try at implementing a travel ban.
This is looking less and less like an ideological battle between conservative and liberal judges and more like a Supreme Court controlled by partisan politicians in robes. And the census ruling could prove it.