Being “authentic” is the buzz these days. Spin has gotten so out of control in our politics that it now takes special training to just be real. “Fake news” and “fact checks” are also new staples used so often they are losing their sting. But when the leader of the judicial branch of our government describes the reasoning of the executive branch as “contrived,” that is important.
It’s a slightly more dignified way for the court to call the administration liars.
Yes, the U.S. Supreme Court stole the headlines June 27, as it often does on the last day of its term.
Two important 5-4 decisions were highlights primarily for their legal conclusions. But the decisions on gerrymandering and the census also established that Chief Justice John Roberts is clearly this court’s new “swing” vote. He voted with the conservatives in the gerrymandering case, stating that the federal courts were not the place to decide how congressional districts should be drawn. He then voted with the liberals on the question of whether the census can include a question about citizenship, authoring a particularly scathing opinion directed at the Trump administration.
Helpful hint: The government should not devise or invent its reasoning for important decisions while Chief Justice Roberts is in charge.
Secretary of Commerce Secretary Wilbur Ross had attempted to add a question about citizenship to the 2020 census. The results of the census are important for many reasons, specifically regarding federal government funding and representation in Congress by the states. The notion of adding the citizenship question was widely expected to drive down participation in the process, and therefore the total. So, 18 states sued to block the question from being added.
The constitution explicitly requires “an enumeration” of “all persons,” including the “whole number of persons in each state.”
Other demographic data has been gathered through the censuses over the decades, but the constitutional purpose of the exercise is “enumeration.” Anything that might adversely impact that purpose should be kept out of it. Census officials feel strongly about this.
The Trump administration’s purpose for asking people their citizenship status is designed to accomplish the opposite, to drive down the enumeration, particularly in states with large immigrant populations, like California and New York. Their political reasoning is also clear: fewer people in those states means less representation for “blue” states.
There is significant history for a legitimate debate on asking this question when conducting the census. But in typical Trump fashion, instead of having the legitimate debate in hopes of prevailing on the facts, it constructed a nonsensical argument about how it needed citizenship information to protect voter rights. Huh? The GOP fighting for voting rights is suspicious in and of itself, even before the plaintiffs successfully proved that Secretary Ross had fabricated the entire endeavor.
Chief Justice Roberts wrote in the census case that agencies must offer “genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public … Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.”
Roberts has consistently displayed a tendency to preserve executive branch authority, but even he has his limits. Being lied to is apparently too much for him to tolerate.
Governing is often difficult. Counting used to be simple. I know plenty of people who find comfort in math by using reasoning like “numbers never lie.” Honestly, is there anything more predictably authentic than a number?
Joseph Stalin said, “It’s not the people who vote that count. It’s the people who count the votes.” Pretty insightful from a brutal dictator who never faced a general election by those he ruled.
The census decision June 27, coupled with the gerrymandering case, is all about how we count and how counting can be manipulated by our governmental processes. The average American likely does not care much about these cases with the same enthusiasm as they would gun or abortion related rulings.
If they only knew how interconnected these things truly are with one another, maybe that would change.
This is Chief Justice Roberts’ court. It has been for some time, but now he is not just the chief, he’s the swing. In these two cases, he went right once and left once. Many will see it more as going right and wrong.
Too many Americans don’t have any opinion at all, I mean, if we were counting them.
Michael Leppert is a public and governmental affairs consultant in Indianapolis and writes his thoughts about politics, government and anything else that strikes him at MichaelLeppert.com.