“Our review is deferential, but we are ‘not required to exhibit a naiveté from which ordinary citizens are free,’” Chief Justice John Roberts wrote for a majority of the Supreme Court today in Department of Commerce v. New York, the closely watched case testing whether the Trump administration could add a citizenship question to the 2020 census questionnaire.
The chief justice was quoting not a Supreme Court ruling but an opinion by the late Henry Friendly, a legendary judge of the Second Circuit Court of Appeals—for whom Roberts clerked after graduating from law school. Some years ago, I saw Roberts speak feelingly about the influence of Friendly on his life. He could have written that sentence a lot of ways; he brought his respected mentor in to tell Secretary of Commerce Wilbur Ross, who pushed for the citizenship question, “I didn’t want to be dragged into this, but the shamelessness of your lies is too much even for me to take.”
This is a huge setback for the administration.
Let’s understand what the Court, in its fractured opinion, decided. It did not decide there could be no citizenship question on the census, which would have fulfilled all the challengers’ hopes. Instead, it said that a citizenship question might or might not be a good idea, but to include it, the Commerce Department needs to explain its reasoning—its actual reasoning, not something cooked up after the fact. And, most important, it remanded the case to the U.S. District Court for the Southern District of New York, where Judge Jesse Furman awaits the parties. And if you think Roberts was displeased with the Commerce Department, wait until you hear from Furman. Though Furman has a number of options, he will probably order the case sent back to the Commerce Department for the assemblage of a new “administrative record”—meaning a voluminous file of factual material the agency relied on to conclude that the question was needed. Once it is done, Furman could be expected to take a close look indeed at the new explanation. (If past performance is predictive, Solicitor General Noel Francisco will ask the Supreme Court to grant a writ of certiorari immediately and hear the case on an emergency basis. That may happen. The problem for Francisco is that his office has, since Donald Trump took office, begun to treat the Court as an emergency room for sick Trump programs, demanding that it shut down any unfavorable litigation before it starts. At some point, that will wear thin.)