If you have been a follower of this site since the beginning, you know that we think that the Census and redistricting are very big things. Getting an accurate count and fair lines tends to help the Democrats win elections.
At the same time, we have also been big followers of the Supreme Court. For good or evil, both sides of the political spectrum have learned that, if you lose the battle in Congress or with an executive agency, you can turn to the courts to continue the battle. And many of these fights ultimately get decided by the Supreme Court.
By the time that this posts, we will be at the end of the first week of the last argument session of the October 2018 Term. (For brief explanation of argument sessions and review process, see appendix.) On Tuesday of next week, the United States Supreme Court will hear a case that combines our focus on the Supreme Court and our focus on the Census — U.S. Department of Commerce vs. New York.
The ultimate issue in this case is whether the 2020 census will include a question on citizenship. Part of the problem in discussing the citizenship question is understanding census history. For the 1960, 1970, 1980, 1990, and 2000 censuses, there were two census forms — the “short form” and the “long form.” The short form went to most households and requested basic information like the names, ages, genders, and race of the individuals residing at a given address on census day. The long form included significantly more detailed questions (including, for a period of time, a citizenship question). After the 2000 census, the census bureau decided to get rid of the long form and replace it with an annual survey (the American Community Survey) sent to a random sample of homes. The American Community Survey does include a citizenship question.
The law governing the census allows the Secretary of the Department of Commerce (the Department that is over the Census Bureau) to add questions to the Census if certain procedures are followed and the questions are constitutionally valid. In 2018, the Secretary of the Department of Commerce decided to add a citizenship question, supposedly at the request of the Department of Justice which allegedly believed that the question was needed to properly administer the Voting Rights Act (on the theory that the number of minority residents needed to allow a minority group to elect a candidate would depend on how many of that minority group were citizens). Several states filed a case challenging that decision. The case technically before the Supreme Court is the one filed by the State of New York. Other states filed different cases that are not technically before the Supreme Court yet but the issues before the Supreme Court has been expanded to cover some of the issues raised in these other cases.
The main issues arising from the New York case are: 1) whether the Secretary of Commerce followed proper procedures and reached a decision supported by the materials submitted to the Secretary in adding the citizenship question; and 2) whether the trial court erred by allowing discovery and the introduction of evidence not included in the administrative record. The second question may get punted as the trial court ultimately did not rely on that additional evidence. There is a third question that comes from the other cases: whether adding the question violates the constitutional requirement that the census be a count of all people residing in the United States (regardless of citizenship status). The argument in these cases is that, because there is some evidence that non-citizens who do not understand that Immigrations and Customs Enforcement will not have any access to any answers given, adding a citizenship question will make it likely that a substantially higher number of non-citizens will not respond, making the final count more inaccurate.
There are three reasons why certain ultra-conservatives wanted this question added. First, there are some who truly want the census to only count citizens. The problem is that the Constitution is absolutely clear that the census is to count the whole number of persons in the United States. Second, even though the Constitution is clear that the number of representatives that each state gets is based on its entire population, some conservatives want to allow the states and cities to only use eligible votes in drawing district lines. The last ruling from the U.S. Supreme Court failed to resolve this question — ruling only that states were not required to base districts on eligible voters — but declining to address whether states could use eligible voters instead of whole population in drawing district lines. Third, there are some conservatives who are happy with the census undercounting the population in Democratic areas of the country, and they believe that those who would not respond if there was a citizenship question tend to live in heavily Democratic areas of the country.
These three reasons add a slight thumb to the scale for how this Supreme Court will decide this case, but it’s unclear in what way. Traditionally, in this country, a conservative Supreme Court would tend to broadly read executive powers — and some of the arguments in some of the briefs do take such a broad view. Some of the current batch of conservative justices, however, have argued in other cases for narrowing the power of administrative agencies. And, while several of the conservative justices are willing to decide close cases in favor of conservative positions, they do have some concerns about the institutional reputation of the Supreme Court. Proponents of the questions have tried to discount the naked anti-immigrant tendencies of the Trump Administration and minimize that this question is really about gaining an unfair advantage for Republicans in the next round of redistricting. Instead, they argue that there is no evidence that this question would have any significant impact on participation and could serve legitimate uses. If two or three justices (primarily Chief Justice Roberts) thinks that adding this question is too much about gaining Republicans an advantage and not about having a comprehensive census, then they are likely to side with the liberal justices.
Unlike most cases heard by the Supreme Court, this case actually has a real deadline for a decision. By law, Census Day is April 1, 2020. According to the pleadings in this case, to have the census out to households in a timely fashion, the Census Bureau must have a final form to the printers by the end of this upcoming June. In other words, the Supreme Court must reach a final decision. Vacating the current decisions and sending them back for rehearing is not a real option. As was the situation back in Bush vs. Gore, there is no real difference between a decision holding that the trial courts need to rehear the case and a decision holding that the question is valid. That doesn’t mean that the Supreme Court will not issue a procedural ruling that fails to resolve the ultimate question (in other words, a faux punt), but such a procedural ruling would have the same impact as a ruling on the merits.
APPENDIX
For regular readers of this site, most of the following will not be new.
The Supreme Court structures its calendar into an annual term which officially begins on the first Monday in October. The term usually consists of seven argument sessions. Each argument session is two consecutive weeks of argument with the arguments held on Monday, Tuesday, and Wednesday (with an argument day preempted if it falls on a holiday). Typically, on the Friday before the argument session, the Supreme holds a private (only the nine justices) conference to discuss which opinions are ready to be issued and what new cases to accept for review. On the Monday of each of the two weeks of argument, prior to the arguments, the Supreme Court issues an “order list” detailing which cases were accepted for review and which cases were declined. For each of the two weeks of argument, there is a Friday private conference in which the justices take a tentative vote on each of the cases heard that week as well as making final decisions on opinions that are ready to be issued and decisions on accepting or declining new cases. Finally, on the Monday of the week after the argument session, the Supreme Court issues an order list detailing which cases are being accepted or declined. After the two conferences during the two argument weeks, the “senior justice in the majority” (i.e. either the Chief Justice if he is in the majority or the Associate Justice with the most seniority in the majority if the Chief Justice is not in the majority) assigns the case to a justice to write the opinion. (There is an unwritten rule that the assigning justices try to keep the workload balanced.) An opinion can be issued on any of the six argument days or on the Monday after the argument weeks. Typically, there is a two week break between argument sessions but there tends to be a longer break over the winter holidays and, sometimes, between the January and February arguments. After the last argument session (typically in April), there is a two week break. After that break, each Monday is an order list day on which opinions could be issued (with a weekly private conference on the preceding Friday) and — starting around the middle of June — the Supreme Court will add additional opinion days so that all opinions are issued in time before July 4. On very rare occasions, the Supreme Court may add argument days after the April session to deal with emergency cases. (For example, the argument on the Watergate Tapes was held in July 1974.)
The Supreme Court gets cases in three basic ways. First, there is a very small category of cases in which the Supreme Court has “original jurisdiction.” Most of these are disputes between the states over water rights or the exact boundary when rivers shift course. In most of those cases, the Supreme Court assigns an attorney to function as the “special master” to take the evidence and recommend a decision based on that evidence. If the parties disagree with that decision, there is briefing and a published opinion, but most of these cases end with an order approving the special masters report and recommendation.
Second, for a tiny number of cases, many involving voting rights, the parties can directly appeal to the U.S. Supreme Court as a matter of right from the federal trial court. The Supreme Court has to resolve those appeals, but many are resolved by a one paragraph order affirming the trial court.
Third, for the vast majority of cases, the Supreme Court has discretionary review (i.e. the Supreme Court chooses if it wants to hear the merits of the case). Typically, review is sought by a “petition for writ of certiorari.” By law, such a writ can only issue to a federal appellate court or a state supreme court (or its equivalent). (For these purposes, a case is treated as having been heard by a state supreme court if a party sought discretionary review at the state supreme court and the state supreme court declined to grant that review. ) The Supreme Court typically only grants certiorari after the lower court has issued its opinion. (After all, the lower court could resolve the case on an issue that does not merit Supreme Court review.) However, in rare cases, typically, like the Census case, involving a time sensitive issue that needs to be resolved quickly, the Supreme Court can grant certiorari and take the case from the lower court prior to opinion.
