As they do every June, eyes are turning toward Washington — and rightfully so.
During this month every summer, the Supreme Court unveils its major decisions week after week, usually saving the most impactful for last. This year, with just ten days remaining in the month, the most important decisions — on the census citizenship question, political gerrymandering, and religious liberty — remain unreleased.
That may change Thursday, when the Court plans to issue rulings. Two of the anticipated end-of-term rulings could reverberate through American politics for decades, probably to the detriment of liberals. They are:
The Census Citizenship Question: Department of Commerce, et. al. vs. New York, et. al.
A coalition of blue states and liberal organizations has sued the Trump Administration over its plans to add a question about citizenship to the decennial census. They argue that the question will deter illegal immigrants and even legal Hispanics from answering the survey, which will result in a flawed count and a misallocation of funds and Congressional seats over the next decade.
From a conservative perspective, a shorter census might be less invasive and more respectful of people’s privacy. (RELATED: Supreme Court Upholds Double Jeopardy Rule That Might Weaken Reach Of Trump’s Pardons)
However, the census already asks about age, Hispanic origin, race, relationship, sex, and owner/renter status. A seventh question would not substantially increase the length of the survey, and could collect important data. The Trump Administration has pointed out that if the government doesn’t know where eligible voters live, specifically ethnic minorities, it cannot effectively enforce voting rights laws.
The citizenship question is not unprecedented, having been asked through the 1950 census and since then in the “long-form” questionnaire answered by a subset of American residents.
One problem with the argument that a citizenship question will deter participation is that by law, census information cannot be used for any non-statistical purpose. Non-citizens – even illegal ones – need not fear deportation or other retaliation for answering the census. In fact, the new question does not even ask if respondents are in the country legally. Here it is in its entirety:
Is this person a citizen of the United States?
__ Yes, born in the United States
__ Yes, born in Puerto Rico, Guam, the U.S. Virgin Islands, or Northern Marianas
__ Yes, born abroad of U.S. citizen parent or parents
__ Yes, U.S. citizen by naturalization – Print year of naturalization
__ No, not a U.S. citizen
That raises the question: should U.S. policy be determined by speculation that some people will do ignorant things? Indeed, people who choose not to answer the census are committing a crime punishable by a fine of up to $100. Democrats who fear that the new citizenship question will deter responses have an easy fix they have thus far spurned: educate reluctant immigrants that answering the census is a safe and obligatory part of living in the United States.
Lower courts have ruled that Commerce Secretary Wilbur Ross, who oversees the Census Bureau, has, along with aides, misled judges as to the reason for the new question. Judge Furman of the United States District Court in Manhattan, for example, found that Ross had tried to cover up his partisan motivations, calling them “pretextual.” He wrote that Ross “announced his decision in a manner that concealed its true basis rather than explaining it.” Ross has disputed that claim.
Now, the Supreme Court would not usually be answering policy questions on whether it’s a good idea to include a certain question on a government form. This case, though, does seem to raise constitutional questions. Judge George J. Hazel of the U.S. District Court for the District of Maryland found in April that the new question violates the constitutional requirement for an “actual enumeration” of “persons” (not citizens or legal residents). He wrote that the citizenship question “would unreasonably compromise the distributive accuracy of the Census” and thus violate the Enumeration Clause.
The Trump Administration has argued that any such compromise is speculative at best, particularly since the citizenship question has been part of the census in at least some form for nearly 200 years.
The administration appears likely to win this case. During oral arguments April 23, Justices Neil Gorsuch and Samuel Alito both suggested Ross was within his right to add the question. Chief Justice John Roberts asked questions that appeared favorable to the Administration, and Justice Brett Kavanaugh emphasized that similar questions were common around the world. He also pointed out that Congress could have barred the census from asking about citizenship — as it has about religion — but failed to do so.
That’s four votes. The fifth conservative justice, Clarence Thomas, as usual did not participate in the debate, but his votes typically side with the conservative minority. (RELATED: Challengers To Citizenship Question Ask Supreme Court To Delay Census Ruling)
The census forms are due to be printed soon after the decision is reached.
Gerrymandering: Rucho v. Common Cause and Lamone v. Benisek
The Supreme Court has been clear that states cannot gerrymander political districts based on race — a stance they underscored with their decision Monday on the composition of legislative districts in Virginia.
But it has never ruled that gerrymandering for political reasons is itself unconstitutional. These two cases (about a map in North Carolina favoring Republicans and one in Maryland favoring Democrats) give the Court an opportunity to do just that.
While it’s common for legislatures and governors to create maps that favor their own parties, technology has greatly aided such efforts. Computers can be programmed to carefully move voters into districts that maximize the representation of one party or the other. While recently retired Justice Anthony Kennedy suggested extreme gerrymandering could be unconstitutional, he noted a need for a standard to determine how partisan is too partisan.
Challengers to the North Carolina law have proposed several mathematical formulas to do just that. But they will face skepticism among at least some of the judges. Chief Justice Roberts, in oral arguments over a similar case from last term, called similar metrics “sociological gobbledygook.” (RELATED: Supremes Block Rulings Ordering GOP To Redraw District Lines In Two Key Swing States)
The justices could create a legal standard for determining partisan gerrymandering that states would have to meet in the future, but it’s more likely the court will simply remove itself from the disputes, and instead say that partisan gerrymandering is not a judicial question at all. Given that the current cases refer to the 2010 census numbers and a new census is imminent, any other ruling is a formula for constant appeals over allegedly unfair maps. Most court-watchers think it’s unlikely the Supreme Court will issue a single clear standard.
In this case, the decision may come down to Justice Kavanaugh, the newest justice. In oral arguments on March 26, he gave mixed signals, acknowledging that extreme partisan gerrymandering “is a real problem for our democracy.” But he also noted that the states were already moving toward solving the problem themselves. Justices Gorsuch and Roberts made similar points.
The gerrymandering case has high stakes for both Republicans and Democrats, because far more states (like North Carolina) have legislatures controlled by the GOP than those (like Maryland) controlled by the Democrats. Permanently unleashing the states to do partisan gerrymandering at will would probably increase Republican representation in Congress, at least in the short term.
Given expected favorable rulings for conservatives on at least one of the cases and probably both, June could be a gloomy month indeed for Democrats and those who want to see them in power.