“How John Roberts Might Allow Trump to Resurrect the Census Question”

I have posted this piece at Slate. It begins:

Despite a favorable ruling for opponents of the census citizenship question on Thursday, the Supreme Court did not definitively decide to exclude citizenship question from the 2020 census. Indeed, I expect that the Trump administration’s Commerce Department and Department of Justice could well be back before the Supreme Court’s next term begins in October arguing for the question’s inclusion, and they could well win and include the question.

It concludes:

The majority opinion and the separate conservative opinions, however, have given the agency plenty of non-pretextual things to say about why it would want to include the citizenship question. Administrative law professor Jennifer Nou even ponders that they could argue they were doing it for partisan reasons, following the decision in Thursday’s partisan gerrymandering case giving such conduct the green light.
But whatever the reason, the agency will likely act quickly to rehabilitate its pretexual ruling. The agency has said that printing had to begin in July, but plaintiffs challenging inclusion of the question have long claimed the real deadline is October. The government will surely concede now that October is doable. The agency could come back with new reasons, and the part of Roberts’ opinion joined by the conservatives which recognizes the broad agency discretion to include the question for non-pretextual reasons will be front and center.

If the agency moves to include the question again, the case will be back before the Supreme Court. It would likely be joined by the other case coming out of the Fourth Circuit arguing that the inclusion of the question violated the Equal Protection Clause because it was based on a racially discriminatory purpose. The court did not address the equal protection holding Thursday, despite the outrageous urging of the Solicitor General for the Court do to so without briefing. Assuming the Commerce Department moves forward with trying to include the question on the 2020 census, the Fourth Circuit could well keep this case alive to create a record of the racial motivations for inclusion of the original question.

On this question, I expect that any new agency decision to include the citizenship question would be found by the court’s conservatives to have cleansed the decision of any racial animus. (The court made just such a finding last year in a Voting Rights Act redistricting case from Texas, Abbott v. Perez.)

So we may see a rare September argument where these issues will be back before the Supreme Court, and John Roberts, who gave the Republicans a green light to gerrymander to their hearts content in today’s Rucho case, may give them yet another tool to solidify their grasp on power despite demographic forces moving against them.

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