By Lisa Soronen
Predicting the outcome of a Supreme Court case based on oral argument is foolhardy. But unless the more liberal Justices (Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan) can pick up the vote of a more conservative Justice (John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh) it seems likely the 2020 census will contain a question about citizenship.
In March 2018, Secretary of Commerce Wilbur Ross issued a memorandum stating he would add the question. He claimed the Department of Justice (DOJ) wanted the data to enforce the Voting Rights Act’s prohibition against diluting the voting power of minority groups.
Ross later admitted that his staff asked the DOJ and the Department of Homeland Security to ask the Census Bureau to include the citizenship question. Both agencies declined. Commerce staff ultimately asked then-Attorney General Jeff Sessions to ask to include the question, which he agreed to do.
The court must decide four issues in this case including whether those suing have legal standing, whether the court has the authority to review the case, and whether adding the question violates the Administrative Procedures Act (APA) or the U.S. Constitution’s Enumerations Clause (also known as the Census Clause).
The justices spent very little time on either standing or reviewability after Breyer asked whether the court would have no say-so if the census was going to be written in French. The justices spent most of their time asking questions about whether adding the question violates the APA, which prevents federal agencies from acting arbitrarily and capriciously or not in accordance with law.
The argument began as might have been expected. U.S. Solicitor General Noel Francisco defended the addition of the question by pointing out that citizenship has been asked on the census in “one form or another” for more than 200 years. Sotomayor immediately interrupted him to point out it hasn’t been on the main survey since 1950 (it still appears on the American Communities Survey, sent to 3.5 million households each year).
As the argument continued the more liberal justices focused on three points indicating that they think adding the question was arbitrary and capricious.
Breyer pointed out that numerous studies indicate fewer people will respond to the census if the citizenship question is added.
Sotomayor noted that the option Ross chose (asking the citizenship question plus relying on citizenship information in the administrative record) was expected to produce less accurate information than relying on citizenship information in the administrative record plus using modeling to estimate citizenship where data doesn’t exist.
Relatedly, Kagan noted that the solicitor general’s brief came up with 60 pages of reasons why Ross chose the option he did. But none of these reasons appeared in his memo and were instead “post-hoc rationalizations.”
Finally, Kagan asked Francisco to explain how asking a number of federal agencies to request adding the question wasn’t “shopping for a need” that was “contrived.”
Three attorneys argued in favor of excluding the citizenship question from the census. The more conservative justices spent their time rebutting their more liberal colleagues’ points and making points of their own.
Alito and Gorsuch questioned whether the Census Bureau’s predication that 5.1% fewer households with non-citizens will complete the form if the question was added was accurate given other reasons non-citizens might not complete the form (such as its length).
Alito asked why Ross couldn’t ask the citizenship question when it would produce 98% accurate information on the 22 million people for whom the Census Bureau lacks this information. The Census Bureau said that while it could come up with a model more accurate than asking, that model doesn’t yet exist.
And the first question coming to the first of three attorneys arguing in favor of excluding the citizenship question was from Roberts. He asked why additional information on citizenship wouldn’t help states comply with the Voting Rights Act.
The Supreme Court will likely issue an opinion in this case in June, right before the census form is printed.
Lisa Soronen is executive director of the State and Local Legal Center and a frequent contributor to the NCSL Blog on judicial issues.