Predicting the outcome of a Supreme Court case based on oral argument is foolhardy. But unless the more liberal Justices (Ginsburg, Breyer, Sotomayor, and Kagan) are able to pick up the vote of a more conservative Justice (Roberts, Thomas, Alito, Gorsuch, and 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 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 Session to ask to include the question, which he agreed to do.
The Court has to decide four issues in this case including whether those suing have 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.
The Justices spent very little time on either standing or reviewability after Justice Breyer asked if 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. United States 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 over 200 years. Justice 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.
Justice Breyer pointed out that numerous studies indicate fewer people will respond to the census if the citizenship question is added.
Justice 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, Justice 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, Justice Kagan asked General 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 refuting their more liberal colleagues’ points and making points of their own.
Justices Alito and Gorsuch questioned whether the Census Bureau’s predication that 5.1 percent less households with non-citizens will complete the form if the question added was accurate given other reasons non-citizens might not complete the form.
Justice Alito asked why Ross couldn’t ask the citizenship question when it would produce 98% accurate information for the 22 million people who the Census Bureau lacks this information for. While the Census Bureau said it could come up with a model more accurate than asking, that model doesn’t yet exist.
And the first question to the first attorney arguing in favor of excluding the citizenship question was from Chief Justice 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.
About the author: Lisa Soronen is the executive director of the State and Local Legal Center, which files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations, including the National League of Cities, representing state and local governments. She is a regular contributor to CitiesSpeak.