"By Linda Greenhouse
In a rational world, the Supreme Court would hit the pause button on the pending census case to take account of new evidence that the Trump administration’s stated reason for adding a citizenship question was a fiction that masked its flagrantly partisan motive. True, the case is to be decided within weeks, to meet what the Commerce Department says is the deadline for preparing the 2020 census, but the country will live for years with the impact of the census on political redistricting and the allocation of federal money.
Unfortunately, given the presidency of Donald Trump and the partisan polarization that has all but overtaken the Supreme Court, it’s hard these days to argue from rationality. And as I suggested last month in describing how, during oral argument, the conservative justices pretended not to understand the fraud that the administration was trying to perpetrate, it’s also hard to argue from shame. Those justices who seemed unable to accept the experts’ conclusions that a citizenship question would distort the census by undercounting immigrant communities seemed beyond embarrassment. It’s highly likely that with the opinion already assigned and presumably circulating in draft, the justices will plow ahead and do what some of them set out to accomplish.
I didn’t expect to be writing again about this case, Department of Commerce v. New York, so soon, and certainly not before the court’s decision came down. Then Michael Wines broke a story in The New York Times last week about the discovery of documents that refute the administration’s claim of wanting the citizenship question to better enforce the Voting Rights Act on behalf of ethnic minorities. He reported that a consultant who had played a crucial role in the Trump administration’s decision to add the citizenship question wrote a study in 2015 concluding that adding the query would allow Republicans to draft even more extreme gerrymandered maps to stymie Democrats. Even before that disclosure, three Federal District judges overseeing separate cases on the issue had also expressed skepticism about the administration’s explanation for the question.
Still, the response of election law experts to the news seemed as definitive as anything I might have said. For example, Prof. Richard L. Hasen of the University of California at Irvine wrote on Slate that “it’s difficult to produce a greater smoking gun than explicitly saying you are hoping to help the G.O.P. by increasing white voting power.”
Professor Hasen added that “the Commerce Department’s decision to include the citizenship question is a textbook example of arbitrary and capricious action in violation of the Administrative Procedure Act.” It was on this basis that Judge Jesse M. Furman of Federal District Court in Manhattan declared the citizenship question invalid in the case now before the Supreme Court; the justices accommodated the administration’s request for speed by taking up the case directly without waiting for a Court of Appeals ruling.
What changed my mind about writing about this issue again was the administration’s response to the request by the plaintiffs, a coalition of immigrant rights groups, to Judge Furman for “sanctions or other appropriate relief” against a Justice Department official and an expert administration witness who, the newly revealed documents indicated, testified untruthfully about the origin of the citizenship question. The plaintiffs have lodged a copy of their District Court filing with the Supreme Court.
The administration’s response, a copy of which was also sent to the Supreme Court, was in most respects unsurprising. It described the new material as unauthenticated and inadmissible hearsay, and it insists that the plaintiffs’ interpretation of the citizenship question’s origin is “not only false, but legally irrelevant as both a procedural and substantive matter.”
(In a hearing Thursday, Judge Furman deferred until after the Supreme Court’s expected ruling any decision on imposing sanctions. or conducting further discovery.)
What got my attention was the anti-media theme running through the administration’s five-page filing. The Justice Department lawyers who signed the cover letter to Judge Furman complained that along with the plaintiffs’ motion for sanctions was the “near-simultaneous publication of an accompanying article in The New York Times” — as if news coverage of a public court filing cast a cloud over the propriety of the filing, rather than the documents’ revelations casting a cloud over the propriety of the administration’s litigating position. The administration lawyers complained further that the plaintiffs “appear to have spent more time coordinating with the media — the detailed Times article was posted online less than an hour after the E.C.F. filing notice — than performing the requisite investigation.” (E.C.F. stands for electronic court filing.)
In other words, what would look to an outside observer — or skeptical judge — as a conspiracy to mislead the public about the reason for asking people about their citizenship status was really a conspiracy between the plaintiffs and the media. What was this doing in a court filing? Either the administration’s witnesses lied to Judge Furman or they didn’t. Either the real reason for asking about citizenship was to help minority communities or to hurt them. What did the reporting have to do with it?
Official Washington’s fixation on the media is, of course, familiar to anyone who breathes these days. But the administration’s filing resonated with something else I’ve been noticing lately — a meme in conservative media that there is a concerted effort on the liberal side of the ideological street, media and elsewhere, to invoke concern about the Supreme Court’s “legitimacy” as a tool for prying Chief Justice John Roberts away from his conservative soul mates on the court.
“There’s a wooing going on,” David French warned in National Review in March under the headline “The Temptation of John Roberts.” His focus was not the census case but abortion and the Mueller report. “According to this construct,” Mr. French wrote, “it’s Roberts the ideologue who would vote to restrict abortion rights. It’s Roberts the conservative who would back the Trump administration. But a chief justice who cared about the institution of the Supreme Court? Well, he guards Roe. He checks Trump.”
In The Wall Street Journal last month, under the headline “John Roberts’s ‘Illegitimate’ Court,” the newspaper’s editorial columnist, William McGurn, wrote: “For those not fluent in modern Beltway, let us translate: It’s a threat, aimed at John Roberts. If the chief justice does not produce the desired progressive outcome, the Roberts court will find itself attacked as institutionally illegitimate.” This week, The Journal’s editorial board took aim at the new development in the census case under the headline “Census Target: John Roberts.” “Whenever you read ‘legitimacy’ in a sentence about the court, you know it’s a political missile aimed directly at Chief Justice John Roberts.”
The conservatives’ touchiness about the chief justice’s reliability is easy enough to understand. It stems from his unexpected vote in 2012 to uphold the Affordable Care Act’s individual mandate. The Washington Post columnist George Will, who had excellent access to the Supreme Court while his friend Antonin Scalia was alive, provided an early indication of trouble ahead in a column he published a month before the court issued the Obamacare decision. Mr. Will’s target in the column, headlined “Liberals Put the Squeeze to Justice Roberts,” wasn’t the media but rather Democratic politicians who were warning about damage that would befall the court if a five-member majority made up of Republican-appointed justices struck down President Barack Obama’s prime legislative accomplishment. In die-hard conservative circles, Chief Justice Roberts is still regarded as a traitor, even though it is surpassingly difficult to think of other examples of apostasy aside from his votes in the two Obamacare decisions.
Yet the steady flow of right-wing commentary mocking concerns about the Supreme Court’s legitimacy (and I readily admit to having added my voice to those concerns) leaves me with this thought: What about the other justices? Why is it assumed on the right that Chief Justice Roberts is the only conservative on the court who has its welfare in view and who worries about the loss of public confidence if the justices come to be seen as mere politicians in robes?
Maybe the question answers itself. (Speaking of election law, it was Justice Clarence Thomas who wrote in a separate opinion three years ago that he regarded the court’s “one person, one vote” jurisprudence as lacking a “sound basis.”) Justice Samuel Alito? The new justices, Neil Gorsuch and Brett Kavanaugh? Shouldn’t we assume that they care too? And if not, why not? As the clock ticks toward the 2020 census, just asking."
Opinion | Who Cares About the Supreme Court’s ‘Legitimacy’?
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