Seven years ago, as the Supreme Court considered a challenge to the Voting Rights Act, Justice Antonin Scalia said the quiet part loud.
The 2006 near-unanimous renewal of the landmark civil-rights bill was “attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement,” Scalia lectured then–Solicitor General Donald B. Verrilli. “Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.”
Scalia’s logic was clear: The 1965 law, which guaranteed black Americans’ right to the franchise in the South for the first time in 100 years, was a “racial entitlement” that Congress itself would never remove, and so the high court was duty-bound to remove it. When Chief Justice John Roberts issued his ruling invalidating the law’s provisions determining which jurisdictions with histories of racial discrimination must submit to oversight by the federal government, however, Scalia’s rationale was absent from the decision. Also absent was any mention of what part of the Constitution the invalidated provision violated.
Roberts didn’t call the Voting Rights Act a “racial entitlement.” Rather, he insisted that while he agreed with the law’s intentions—“any discrimination in voting is too much,” he wrote—close federal oversight of local election laws to prevent discrimination was no longer warranted. “Things have changed dramatically,” Roberts concluded. Shortly thereafter, Republican-controlled states moved as quickly as possible to impose restrictions on voting targeted at minority communities, as if determined to make Roberts look a fool or a liar.
The disparate approaches taken by two of the Court’s conservatives to the Voting Rights Act reflect the right’s dueling impulses toward civil-rights laws. Where Scalia rejected the very effort to guarantee black people the same right to cast a ballot as white people as a “racial entitlement,” Roberts insisted that he agreed with the law’s underlying premises, but that the statute now did more harm than good.
Lingering beneath the surface was a defining question for the American right: Does it agree with Roberts that “any discrimination in voting is too much”? Or with Scalia, who saw ensuring equal participation in the polity as a black “racial entitlement”?
The Supreme Court’s looming decision over the addition of the citizenship question on the U.S. census will hinge on the answer to that question. The census provides the basis for congressional apportionment and the distribution of federal resources. Empirical studies of the impact of adding the question have determined that it would result in a dramatic undercount of Latinos and immigrants—exactly contrary to one of the Donald Trump administration’s stated rationales, that it would provide a more accurate count.
Since the rise of Trump, the American right has been offered a stark choice between the democratic ideals it has long claimed to believe in, and the sectarian ethno-nationalism of the president, which privileges white identity and right-wing Christianity over all. Scalia didn’t quite have it right: The fundamental question for American democracy since the founding has indeed been whether it is a “racial entitlement,” but only because of those who have tried for centuries to ensure that white people alone are entitled to it.
The Roberts Court has already taken steps in this direction. Last year it endorsed Trump’s travel ban, despite the president’s public statements identifying Muslims as the ban’s target, on the basis that the order itself did not mention religion, a blueprint for allowing further discriminatory efforts to pass constitutional muster as long as the high court’s conservatives retain control. Later that year, the conservative justices, self-styled champions of the freedom of religion, denied a request by a Muslim death-row inmate to have an imam present for his execution, forcing the condemned man to make do with the prison’s Christian chaplain. In both cases, the Court’s conservatives could hide behind the letter of the law in dismissing the government’s official disapproval of Islam. But recent revelations in the census case will force the Roberts Court to decide whether America is a nation for all of its citizens, or a white man’s republic.
On the surface, State of New York v. United States Department of Commerce appears to be a dry question of administrative and constitutional law. In January 2017, the news leaked that the Trump administration wanted to add a question asking census respondents whether they were American citizens. The Trump administration enlisted the acting head of the Civil Rights Division of the Department of Justice, John Gore, to state that the question should be included to improve enforcement of the Voting Rights Act. Wilbur Ross, the head of the Department of Commerce, which administers the census, insisted to Congress that this was the reason for the addition of the question. In fact, Ross had sought the addition of the question long before this rationale was provided.
A recent Court filing by groups challenging the addition of the citizenship question shows what the administration really had in mind. The filing shows that Thomas Hofeller, the late Republican redistricting expert, concluded that adding the citizenship question would, in his words, “be advantageous to Republicans and Non-Hispanic Whites.” That analysis was offered in a 2015 memo, as Hofeller was helping Republicans draw redistricting lines that they believed would cement a majority in Congress. That memo, along with a 2017 document written by Hofeller on the subject, which contains some language identical to a later Justice Department memo on the matter, was turned over to the liberal group Common Cause by Hofeller’s daughter after his death.
Voting districts are typically drawn using total population. A switch to using the voting-age citizen population would, Hofeller concluded in his 2015 memo, expand white political power at the expense of people of color, and thereby increase Republican advantage. But, Hofeller wrote, that shift could only occur with the addition of a citizenship question to the 2020 census, which would provide the federal government with data necessary for that switch. This argument, which reappears in Hofeller’s 2017 memo, was adopted by the Justice Department in its justification for adding the citizenship question to the census, along with the legal pretext of wanting to better enforce the Voting Rights Act.
In other words, long before Trump was even elected, Republican Party insiders were plotting to increase white political power at the expense of people of color. After Trump was elected, they implemented this plan by insisting that their actual goal was the protection of minority voting rights. As with the Voting Rights Act, there was the real reason and the stated reason, the truth and the pretext. The nationalism, and the delusion.
“It just seemed like a new level of mendacity, and putting their goals out there in black and white in a way we hadn’t seen before,” says Dale Ho, one of the American Civil Liberties Union attorneys who submitted the filing on behalf of the challengers in the census case. “No one believes that anyone in this administration has any intention of enforcing the Voting Rights Act.”
The use of the Civil Rights Division, which was established to protect Americans’ fundamental rights, to undermine those very rights is a perversion of justice. But it also illustrates that Trumpism merely traveled a few stops down the road from where the Republican Party leadership had been. The risk with Trump was not that the GOP would become a vehicle for the preservation of white political and cultural hegemony; it was that he would discredit that project by making its agenda explicit, by saying, as Scalia did, the quiet part loud.
That the Republican effort to increase white political power might be motivated by partisanship rather than racism is little solace. Segregationist Democrats might not have insisted on disenfranchising black voters after Reconstruction had those voters not been staunch Republicans. Whether motivated by partisanship or racism, though, the result is the same. If the Roberts Court does not draw a line here, this will not be the last step toward reestablishing a white man’s government it will be asked to take.
The census case does not hinge on whether the citizenship question is discriminatory. Rather, as a matter of administrative law, the executive branch must follow certain procedures before making decisions. The Trump administration’s blatant dishonesty settles the question of whether it followed procedure definitively: It did not.
“This kind of smoking-gun evidence of what the real illicit reason is behind a government action is incredibly rare. Court decisions don’t require it, and it’s really quite shocking to read it so explicitly,” Wendy Weiser, a voting-rights expert at the Brennan Center, told me. “Every procedural constraint on agency decisions was violated in this case, and the reason that was provided, every lower court found, was not the real reason that the secretary of commerce added the citizenship question.”
The Trump administration has fiercely denied that Hofeller’s reasoning influenced the administration. But like most Trump-administration denials, this appears suspect. Not only did a Trump transition official, Mark Neuman, testify in a deposition that he spoke with Hofeller, who urged him to add such a question to the census, but Neuman later became an adviser to Ross. (Neuman testified that Hofeller told him that the change would increase Latino political participation.) As The New York Times reported, Neuman provided Gore with the draft of a memo endorsing the citizenship question that echoes Hofeller’s language in a 2017 document found on his hard drive word for word, and a later, more detailed memo to Ross from the Justice Department further adopts Hofeller’s reasoning and uses some of his language. The Trump administration’s reply to the filing dismisses this evidence of Hofeller’s influence on the process as “pure speculation.”
Ironically, because conservatives on the Roberts Court appear to believe that government remedies for racial discrimination are worse than racial discrimination itself, there is considerable apprehension among left-leaning attorneys about providing the high court with concrete proof of racist intent in this case or any other. They fear that such proof is liable to make the Court’s conservatives more likely to rule against them. In this case, however, the evidence that adding the question was intended to bolster white political power is also further proof that the administration did not follow the law in adding the question.
The census case is not ultimately about administrative procedure; it is, more fundamentally, about whether the Trump administration can use the federal government for the explicit purpose of increasing white political power. The Trump administration, and by extension, the conservative masses, are already on board, convinced by years of right-wing propaganda that all the opposition’s victories at the ballot box are suspect. Those elements of the Republican establishment that funded and conceived of the census scheme are all in, as well. The only remaining question is whether, and to what extent, the high court is willing to ratify this step toward white man’s government. It is not the first time it has been asked to do so.
Even before William F. Buckley declared in 1957 that “the White community in the South is entitled to take such measures as are necessary to prevail, politically and culturally, in areas in which it does not predominate numerically,” the modern conservative movement has struggled to reconcile the ethno-nationalism that moves masses of its voters with the pluralism embodied in the notion that all persons are created equal.
Trump’s victory settled the question of whether the GOP would seek to expand its base by diversifying it, or rely on the imposition of white political hegemony over a changing electorate. This is a counter-majoritarian strategy that, in the long run, relies on abandoning the pretense of liberal democracy in favor of something else: A white man’s republic, if they can keep it.