Leftwing activists are pushing a coordinated media campaign to pressure Chief Justice John Roberts as the Supreme Court decides whether the 2020 census can ask people in America if they are U.S. citizens.
It is unlikely that Roberts would imperil the Court’s credibility by capitulating on this important legal issue, thereby guaranteeing that the U.S. government fails to carry out a constitutional command.
Barack Obama raised eyebrows in 2012 when he made Rose Garden remarks about how the Supreme Court’s reputation would suffer if it struck down the Affordable Care Act (ACA) as unconstitutional. Some scoffed at the idea that this political campaign could move the Court.
But many think it did. Several features in the various opinions that comprised the Court’s NFIB v. Sebelius decision suggest that the Court initially voted to strike down Obamacare’s individual mandate by a 5-4 vote. Leaked accounts allege that Roberts reversed his vote weeks after the case was argued, continuing to agree that the individual mandate is not authorized by the Constitution’s Commerce Clause, but by a separate 5-4 vote, upholding the mandate as a tax.
Now it appears the left is trying to get Roberts’ attention again.
This latest attempt is in the citizenship question case. Commerce Secretary Wilbur Ross is including on the decennial census a question asking each household how many of its members are U.S. citizens.
The American Civil Liberties Union (ACLU) sent a letter to the Supreme Court on May 30, informing the justices that new evidence had been discovered regarding the citizenship question. The ACLU claims that Dr. Thomas Hofeller, who specializes in redistricting, advocated for the citizenship question because redrawing district lines on the basis of citizenship would benefit Republicans. The group further alleges that this means officials from the Department of Commerce (DOC) and Department of Justice (DOJ) gave false testimony over the origin and purpose of the question.
The group informed the Supreme Court that it filed a motion in the federal trial court that heard this case – the Southern District of New York – asking for that district judge to impose sanctions to punish the lawyers involved.
Leftist media outlets are ginning up the issue, with papers like the New York Times running stories breathlessly fretting over the “true motive” of asking such a basic question, implying nefarious intent.
On June 3, DOJ filed a response in the district court, saying the ACLU’s motion “borders on the frivolous,” and that rather than a smoking gun, the ACLU’s argument is nothing more than “smoke and mirrors.” Solicitor General Noel Francisco apprised the Supreme Court of these lower-court developments, urging the justices to continue pressing toward a final decision in the government’s favor.
Then on June 12, the ACLU filed a motion with the Supreme Court asking the justices to blow the case up and remand this matter back to the trial court for a new hearing to examine this allegedly important evidence.
The Court should ignore this motion, or outright deny it.
As DOJ explained to the Southern District of New York in response to the ACLU’s motion, there is no evidence that the DOJ official involved “ever read, received, or was even aware of the existence” of Hofeller’s analysis. This looks like a Hail Mary to derail this case in the 11th hour.
Beyond that, all 50 states currently draw legislative district lines based on total population, not citizenship. The Supreme Court left unanswered in Evenwel v. Abbott (2016) whether the Constitution even permits states to draw lines based on citizenship. It is pure speculation as to whether a single state would ever attempt to do so, or whether the Supreme Court would ever allow it.
Roberts does not have a reputation of making shocking moves based purely on speculation about what elected politicians might do at some point in the future.
Beyond that, as the justices discussed during oral argument when this case was heard in April, the U.S. government has been asking about citizenship since 1820. It asked the question as recently as 1950, and discontinued doing so only after the Census Bureau started asking the question through other means. As Francisco explained, the question “has been asked as part of the census in one form or another for nearly 200 years.”
Roberts noted during argument that this citizenship data is critical for enforcing voting rights. Other justices noted that the census asks all sorts of questions. And Justice Brett Kavanaugh noted that Congress could always include statutory language that would block this question, and that Congress has not chosen to do so.
The Supreme Court expedited this case, granting review before the U.S. Court of Appeals for the Second Circuit issued a judgement on the initial appeal. That was the first time in many years that the Supreme Court had granted a Rule 11 petition for certiorari before judgment. The Court did so because Francisco explained that the Census Bureau had to finalize the content of the census form by July 2019 in order to print tens of millions of forms for 2020.
It is still true that the census form must be in final form by July, which is only two weeks away. Otherwise the census will not go forward on schedule.
Roberts knows that conducting the decennial census is not only one of the enumerated powers of the federal government, it is also something that Constitution explicitly commands the government to do.
It could significantly damage public perception of the Court if the justices make it impossible for the U.S. government to carry out this constitutional command. This is one of the few things the Supreme Law of the Land demands the government do, and specifies when it must be done. It would be worth an entry in the history books if the nation’s highest court were to subvert that constitutional requirement by allowing plaintiffs to play the Court, knowing that delaying the census form any longer would actually result in a flawed 2020 census count.
Nothing Roberts has done to date suggests that he would want the Court to take the blame for such a blunder, or for such a failure to be part of his legacy as chief justice of the United States.
If any state does attempt to redistrict based on citizenship data, the ACLU could always file a constitutional lawsuit at that time, challenging the legality of using citizenship data and arguing that asking the question was merely a pretext all along. All these issues can still have their day in court. The Supreme Court does not need to blow up one of its cases on the eve of handing down the decision to resolve these allegations.
To the contrary, the Supreme Court should avoid panic, ignore speculation, issue its final decision on the merits, and ensure that the federal government can fulfill its constitutional duty in 2020.
The case is Department of Commerce v. New York, No. 18-966 in the Supreme Court of the United States.
Ken Klukowski is senior legal analyst for Breitbart News. Follow him on Twitter @kenklukowski.
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