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John Roberts Just Called Out the Trump Administration for Lying

Will he have the stomach to do it again?

By RICHARD PRIMUS

What happened in the census case?

That’s the question that Americans—even legal experts—confronted with the puzzling, blockbuster Supreme Court decision on Thursday in Department of Commerce v. New York. The short answer is that the Trump administration’s efforts to include a question about citizenship on the 2020 census are at least temporarily stymied. Whether the administration can ultimately rebound and get the question on the census remains unclear.

But Thursday’s decision also has broader implications for the Supreme Court’s entire relationship to the Trump administration. One of the administration’s distinctive characteristics is its approach to truth and lying. All administrations sometimes hide, shade or slant the truth—and occasionally lie outright. The present administration is different in that it lies regularly, blatantly, heedlessly. In the census case, the Supreme Court, for the first time, called the administration on this behavior—ever so politely and by the slimmest of margins. But still. Now the question is whether it will have the stomach to do so in other cases—or even in this case, if it comes back to the court in the near future.

The political stakes of Department of Commerce v. New York are enormous. Many Latinos fear telling government officials that they or their household members are not citizens, even if they are in the country legally. As a result, experts estimate that asking people on the census whether they and their household members are citizens would cause a significant drop in the number of Latinos who answer the census. That would lead to a significant undercounting of the Latino population. Representation in Congress is allocated on the basis of the census’s population figures, as is much federal spending. So undercounting Latinos would shift political power and government support toward Republicans. (Under the Constitution, representation in Congress is a function of total population, not just citizens.)

The challengers in today’s case, led by the state of New York, argued that the administration wanted to put a citizenship question on the census for that very purpose: to undercount Latinos. And the challengers were right. The administration officials who precipitated the decision to put a citizenship question on the census were working from material developed by Thomas Hofeller, a leading Republican districting operative, whose recently revealed papers overtly discuss including a citizenship question for the purpose of benefiting “Republicans and non-Hispanic whites.”

When challenged in court, of course, the administration didn’t say it wanted to include a citizenship question in order to undercount Latinos. It said it wanted citizenship data to be better able to enforce the Voting Rights Act, on the theory that knowing who is a citizen would help the government know who could vote. For a cornucopia of reasons documented in a 277-page opinion from the District Court for the Southern District of New York, that explanation was not credible. (For example, asking about citizenship on the census would actually produce less reliable information about the citizen population than the government already has through other survey instruments, given that many people would decline to respond to the census if that question were included.) The administration in turn argued that the courts had no business looking so deeply into the reasons for its action: They should simply accept that the reasons it was offering were its real reasons and permit the citizenship question.

One problem with that argument, though, is that the Supreme Court has previously held that where there is a strong indication of bad-faith government action, a court can look deeper. And today, a majority composed of Chief Justice Roberts and the four more liberal justices called shenanigans. Quoting the legendary judge Henry Friendly, for whom Roberts once clerked, the chief justice wrote that the Supreme Court is “not required to exhibit a naivete from which ordinary citizens are free.” In other words, if everyone can see that the administration is lying, the court isn’t required to pretend that it alone is blind.

The census case is an echo of, and a twist on, the Supreme Court’s biggest decision from one year ago: Trump v. Hawaii, which upheld the “travel ban”—the administration’s order banning entry into the United States by nationals of several majority-Muslim countries. In that case, too, the real issue was whether the court would acknowledge knowing what pretty much everyone knew: that the entry ban would never have come into existence if not for President Donald Trump’s well-documented anti-Muslim animus. But a year ago, the court went the other way. Joined that time by the court’s four other conservative justices, Roberts indulged the presumption that the administration acted for appropriate reasons. There are excellent reasons for that presumption, especially in the realm of national security and foreign affairs, where decisions should usually be made by the elected branches rather than the judiciary. But in the entry-ban case, the court essentially treated that presumption as absolute. Even where the president obviously had an unconstitutional motive, as evidenced by his own statements, the court was unwilling to say so.

Why did the chief justice come out the other way this time? There are multiple possible explanations. Maybe it matters that one case was (at least ostensibly) about national security and the other was not. Maybe it matters that in the census case the person whom the chief justice had to call a liar (circumspectly—words like “lie” do not appear in the opinion) was a Cabinet secretary rather than the president himself. Maybe the evidence of deceit was more damning in the census case—though it was pretty clear in the entry-ban case, too. Maybe the lower court’s surpassingly thorough documentation of the problems with the administration’s position made the chief justice think he couldn’t pretend not to know without looking foolish. Whatever the case, this time Roberts refused to play the see-no-evil role.

But it would be a mistake to think that so much divides the two cases. Eight out of nine justices took essentially the same posture both times: Four Democratic appointees refused to pretend that the administration wasn’t lying, and four Republican appointees refused to look behind the administration’s official explanations. In their dissents today, Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh excoriated the majority for questioning administration officials’ good faith. What’s more, the administration might still get its way. Rather than declaring the case at an end, the chief justice sent the matter back to the Commerce Department, saying that the administration can still include the citizenship question if it comes forward with a better reason.

Assuming the administration tries to take a second shot—and it probably will—there is virtually zero chance that the reason it produces next time will be authentic. The authentic reason, after all, is that the administration would like the census to undercount Latinos. Instead, the administration is likely to come back with some other made-up reason—something inoffensive, and something that is not so blatant a lie as the last one—in the hopes that the chief will not have it in him to call shenanigans twice. One thinks here of a Scott Adams “Dilbert” cartoon from 20 years ago, in which an employee tells a whopper to his manager in order to cover his bad job performance, and the manager, lacking the will to discipline the employee but insulted at being played for a fool, cries, “I demand a more plausible lie!”

One other intensely practical question looms over this case now: Is there enough time remaining before the Commerce Department must print the census questionnaires for the administration to come up with another rationale and defend it in court? If not, the court’s action today would effectively end the case by running out the clock. The administration asked the Supreme Court to take the case at an unusually early stage, before a circuit court had a chance to review it, on the grounds that the Commerce Department needed a decision no later than June 2019 in order to be ready for 2020. But the president tweeted almost immediately after the decision was released that he is looking into delaying the census if necessary.

If the administration now says that it can put a citizenship question on the census even if permission comes some time later than June 2019, it will falsify the premise on which it got the case to the Supreme Court in the first place—i.e., that only a decision by June would be soon enough. In other words, having lost today because the chief justice couldn’t stomach the lying, the administration in trying to take a second shot would be acknowledging that it lied not just about why it wanted the citizenship question, but also about the timetable on which it needed a decision. That ought to undermine the administration’s credibility with the court even further.

Whether the administration will ultimately pay any price for playing fast and loose in this way is, like so much else, a question of the court’s tolerance for obvious falsehoods on the part of the administration—falsehoods including lying in court. At present, the court’s tolerance for that conduct comes down to the tolerance of one man: the chief justice of the United States.