Conservative justices appear united on census
Ruling expected in June; requiring answer projected to miss 6.5M, some in Southwest
WASHINGTON — The Supreme Court’s conservative majority seemed ready Tuesday to allow the Trump administration to add a question on citizenship to the 2020 census, which critics say would undermine its accuracy by discouraging both legal immigrants and those in the country illegally from filling out the forms.
Justice Sonia Sotomayor said that adding the question would do damage to the fundamental purpose of the census, which is to count everyone in the nation. “There is no doubt that people will respond less,” she said. “That has been proven in study after study.”
The case, the latest test of executive power in the Trump era, was heard by the court against the backdrop of the administration’s aggressive efforts to reduce illegal immigration as well as accusations of bad faith against the architect of the revised census questionnaire, Commerce Secretary Wilbur Ross. It appeared to divide the court along the usual lines, with its five conservative members poised to defer to the administration and Sotomayor and the court’s three other liberal members ready to question its motives and meth
methods. The court’s decision, expected in late June, will be consequential. By one government estimate, about 6.5 million people might not be counted if the citizenship question is allowed. That could reduce Democratic representation when congressional districts are allocated in 2021 and affect how hundreds of billions of dollars in federal spending are distributed. Courts have also found that Arizona, California, Florida, Illinois, New York and Texas could risk losing seats in the House, and that several states could lose federal money.
Solicitor General Noel Francisco, representing the Trump administration, acknowledged that the question could depress participation. But he said the information it would yield was valuable. “At the end of the day,” he said, “if you add any particular question onto the census, you’re always trading off information and accuracy.”
How to strike that balance, he said, was a policy judgment properly made by Ross. The more conservative justices appeared to agree.
But Barbara Underwood, New York’s solicitor general, representing states and localities challenging Ross’ decision, said the court should protect the accuracy of the census form given that information about citizenship can be obtained in other ways.
Justice Neil Gorsuch noted that questions about citizenship had been asked on many census forms over the years and were commonplace around the world.
“It’s not like anybody in the room is suggesting the question is improper to ask in some way, shape or form,” Gorsuch said. “And what we do, as well, with the evidence of practice around the world and virtually every English-speaking country and a great many others besides ask this question in their censuses?”
Justice Brett Kavanaugh also discussed international trends. “The United Nations recommends that countries ask a citizenship question on the census,” he said. “And a number of other countries do it. Spain, Germany, Canada, Australia, Ireland and Mexico ask a citizenship question.”
Underwood responded that “the U.N. also says to be careful to test questions to make sure they don’t interfere with the enumeration.”
Much of the argument, which lasted 80 minutes instead of the usual hour, concerned statistical modeling. “This gets really, really technical,” Justice Samuel Alito Jr. said in a frustrated voice.
The case — United States Department of Commerce v. New York, No. 18-966 — has its roots in the text of the Constitution, which requires an “actual enumeration” every 10 years, with the House of Representatives to be apportioned based on “the whole number of persons in each state.”
In addition to counting the number of people in the nation, the census has also sought other kinds of information.
Whatever the Supreme Court rules, the 2020 short form will include questions about sex, age, race and Hispanic or Latino origin. Some of those questions may discourage participation, too.
Dale Ho, a lawyer with the American Civil Liberties Union, said the citizenship question would do more than suppress the response rate. It would also introduce inaccuracies, he said. “The evidence shows,” he said, “that noncitizens respond to the question inaccurately one-third of the time.”
The more liberal justices said that was a reason to defer to expert statisticians in the Census Bureau who opposed adding the question.
Justice Elena Kagan said she could not understand why Ross had rejected the conclusions of his own experts.
Francisco said the evidence supplied by the experts was not definitive. “Look,” he said, “there’s no question that the bureau staff preferred not to have this question on the census. But what they were telling the secretary was that they couldn’t tell which model would be more or less accurate.”
The federal government has long gathered information about citizenship.
But since 1950, it has not included a question about it in the census forms sent once a decade to each household.