Courts

John Roberts Sends The Citizenship Question Back To Commerce For More Whitesplaining

We finally have a Supreme Court decision that recognizes that Donald Trump is the president.

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Maybe there is a God? (Photo by Jabin Botsford – Pool/Getty Images)

Commerce Secretary Wilbur Ross, presumably at the direction of President Donald Trump or shadow President Stephen Miller or former Confederate Attorney General Jeff Sessions, decided to add a citizenship question to the upcoming decennial Census. Their reasons were clearly and provably racist. Their intention, according to newly uncovered documents, was to suppress the count of non-citizens who would be afraid to fill out the form, in a way that would be “advantageous to Republicans and non-Hispanic Whites.”

Of course, that’s not why they said they were adding the question. White people who are about to do some racism rarely say “we’re fittin’ to do some racism.” Before Donald Trump was elected, plausible deniability was key to the white supremacist regime. Since Trump, they’ve dropped the “plausible” but still cherish “deniability.” All of Trump’s most racist programs and policies have come with a thin veneer of deniability. We call these reasons “pretexts.” Everybody knows Trump is really trying to ethnically cleanse the country of nonwhites, but his pretextual reason for allowing people to drown in a river is “border security.”

The stated reasons for the inclusion of the citizenship question were a cruel joke. According to Ross, the citizenship question was added to help nonwhites access their rights under the Voting Rights Act. That’s a complete lie, but the Trump administration doesn’t believe it has to tell the truth even when everybody knows its lying.

His supporters are in on the joke, and the media slavishly repeats the Trump administration’s pretextual reasons for their policies, and conservative courts latch onto these “race-neutral” reasons when they have enough votes to advance his white supremacist policies. Most famously, the Supreme Court allowed Trump’s Muslim Ban to go forward, for the entirely pretextual national security tropes. After that tragedy of a Supreme Court decision, why would the Trump administration ever feel constrained to make a truthful argument again?

We have been waiting for the Supreme Court, for Chief Justice John Roberts essentially, to finally reach his limit with the pretexts and simply acknowledge that he understands what Trump is doing. Nobody expects Roberts, a lifelong conservative with a nasty streak when it comes to nonwhites who have the gumption to try to vote, to change his ideological stripes just because an open bigot is advancing Roberts’s political agenda. But we have been waiting to see if there is some point at which John Roberts will refuse to rubberstamp lies from the Trump administration when he knows they’re lying.

That limit was finally reached today. In Department of Commerce v. New York, Roberts finally called the Trump administration out on its BS. His opinion reads like a man desperate to go along with the Trump administration, who at the end just couldn’t swallow one more lie. From the Roberts opinion:

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That evidence showed that the Secretary was determined to reinstate a citizenship question from the time he entered office; instructed his staff to make it happen; waited while Commerce officials explored whether another agency would request census-based citizenship data; subsequently contacted the Attorney General himself to ask if DOJ would make the request; and adopted the Voting Rights Act rationale late in the process. In the District Court’s view, this evidence established that the Secretary had made up his mind to reinstate a citizenship question “well before” receiving DOJ’s request, and did so for reasons unknown but unrelated to the VRA. 351 F. Supp. 3d, at 660.

The Government, on the other hand, contends that there was nothing objectionable or even surprising in this. And we agree—to a point. It is hardly improper for an agency head to come into office with policy preferences and ideas, discuss them with affected parties, sound out other agencies for support, and work with staff attorneys to substantiate the legal basis for a preferred policy. The record here reflects the sometimes involved nature of Executive Branch decision-making, but no particular step in the process stands out as inappropriate or defective.

And yet, viewing the evidence as a whole, we share the District Court’s conviction that the decision to reinstate a citizenship question cannot be adequately explained in terms of DOJ’s request for improved citizenship data to better enforce the VRA. Several points, considered together, reveal a significant mismatch between the decision the Secretary made and the rationale he provided.

Remember, the Roberts court tried everything it could to cut off discovery into the real reasons Ross and the rest of the Trump administration decided to add this question. Roberts didn’t want to know. He didn’t want to be forced to look the Trump administration in the eye and see it for what it always has been. Roberts has rested his entire career on the basis of not knowing how things really are (I’ll get to his gerrymandering decision later today). The operative difference between the jurisprudence of John Roberts and that of former Chief Justice Roger Taney is that Roberts loves accepting the conservatives’ pretextual arguments while Taney had no need for them.

But here, he blinked. It would appear that the bald racism of documents found on Thomas B. Hofeller’s hard drive was just too naked for him to ignore. Roberts likes to say: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” This case would have forced him to say: “The way to stop discrimination on the basis of race is to discriminate on the basis of race and hope I don’t notice.” That was too much for him.

It’s far from a complete victory, because Roberts makes it very clear that nearly any other pretextual reason would be enough for Commerce to add the citizenship question. If Ross had come up with a slightly less obviously false reason for adding the citizenship question, Roberts would have let him add it. People forget, the Muslim Ban that Roberts approved was the administration’s third try at the Muslim Ban. The third Muslim Ban was itself a pretext and its true intentions were more directly explained in versions one and two. Roberts swallowed that pretext whole. Roberts is fine with giving the Trump administration multiple bites at the apple to get its bigotry in the right format.

What will frustrate the Trump administration going forward is not Roberts, it’s time. Roberts doesn’t want to wear a racist hat like the MAGA people; he likes the old-school hood that Republicans used to hand out. But it takes time to make those, and given that deadlines for printing the Census are coming up, the incompetent-on-a-good-day Trump administration might not have time to whitesplain this to Roberts’s satisfaction.

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And there’s another problem. The case that came to the Supreme Court was only about whether the government’s actions in adding the citizenship question were arbitrary and capricious. Whether it was intentionally racially biased was not addressed by the Supreme Court, because the lower court decided that there wasn’t enough evidence to make that claim. But that was before the Hofeller documents. Now, U.S. District Judge George Hazel, who had previously ruled that those objecting to the citizenship question on equal protection grounds had not made their case, has agreed to re-open that question in light of the new evidence.

As with everything Trump, the more you dig, the more dirt you find. Even if the Commerce Department quickly comes up with new reasons for adding its racist question, the issue of whether the question is racist is back on the table.

Practically speaking, the citizenship question should not appear on the 2020 Census. But in many ways, the Trump administration has already scored a partial victory. Their goal has been to make nonwhites afraid to fill out the Census. No last-second Court ruling can diminish the fear and terror Trump has already put into immigrant and migrant communities.

But at least we now know that John Roberts has a limit. And if you stand up to a racist bully once, maybe you find the courage to do it again.

Department of Commerce v. New York [Supreme Court]

Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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