Roberts’s Rules of Misrepresentation
The chief justice has enshrined bad-faith argumentation as the legal strategy most likely to succeed at the Supreme Court.
Chief Justice John Roberts would like the Trump administration to stop leaving a paper trail.
Conservatives were outraged Thursday when Roberts joined the Court’s Democratic appointees in at least temporarily blocking the addition of a citizenship question to the U.S. census because the Commerce Department had plainly lied about the purpose of that change. Roberts did not argue that a citizenship question was unconstitutional, merely that the administration had violated administrative law by misleading the public about its decision.
Yet even Roberts’s opinion was deeply strained. The chief justice clearly wanted to side with the Trump administration, writing that “we do not hold that the agency decision here was substantively invalid,” but that the law “calls for an explanation for agency action” rather than the false explanation provided. Only the administration’s foolishness in documenting its own blatant dishonesty prevented it from prevailing. Indeed, Roberts was the lone member of the Court’s conservative wing to conclude that the law prevented the federal government from lying to the public about decisions affecting millions of people, insisting that the Administrative Procedure Act “is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public.” It is good that Roberts is drawing the line somewhere, but upon closer scrutiny that line appears to be a very thin one.
Together with his decision upholding the Trump administration’s travel ban and yesterday’s decision blessing partisan gerrymandering, Roberts has illustrated the path forward for those Republicans who seek to diminish the power of nonwhite voters and maintain their own power even as they earn fewer and fewer actual votes. Roberts’s red line is not state dishonesty or flagrant discrimination. Rather, he is willing to countenance both as long as the Trump administration does not produce a paper trail documenting the fact that it is lying. His four fellow conservative justices, on the other hand, are as willing to consume Trump-style ostentatious dishonesty as ravenously as any dribbling sycophant on Fox News.
In the travel-ban case, Roberts insisted that despite the president’s public statements about wanting to ban Muslims, the text of the travel ban itself “says nothing about religion.” This may seem to contradict the pithy observation he quoted in the census case that the Court is “not required to exhibit a naiveté from which ordinary citizens are free.” The distinction between the two cases, though, is found in the emails proving that Commerce Secretary Wilbur Ross wanted to add the citizenship question even before latching onto enforcing the Voting Rights Act as a rationale for the move. It is possible, even likely, that if there’s enough time to deal with the pending litigation before the census gets under way, Roberts will accept whatever explanation the Trump administration is willing to offer, as long as there is no documented proof it is lying. Bad-faith argumentation, even outright dishonesty, is acceptable—so long as you don’t get caught.
Similarly, Roberts’s decision in the political-gerrymandering case, in which he concluded that settling political-gerrymandering decisions was a question outside the Court’s authority, offers a way forward for Republicans seeking to weaken the political power of black and Latino voters in order to maintain their own dominance. Republicans can simply argue that they are drawing congressional districts to discriminate against Democrats, rather than against voters of color per se. As long as they aren’t foolish enough to document an intention to explicitly discriminate against voters of color, Roberts will be on their side.
Roberts’s conservative colleagues, however, don’t even need the pretext. In his partial dissent, Justice Clarence Thomas lamented the “din of suspicion and distrust that seems to typify modern discourse,” in the course of arguing that the Trump administration should have been believed despite evidence detailing its falsehoods. That Thomas’s jurisprudence shows a years-long hostility to such deference in almost every other case is not ironic; it is evidence that he is trolling, demanding an expectation of good faith while flaunting his own bad faith.
Similarly, Justice Samuel Alito complained in his partial dissent that the critics had charged that the decision to add the citizenship question was racist. Yet the likely impact of adding the census question—a diminished response rate that would weaken the political influence of minority communities while strengthening the power of overwhelmingly white, Republican districts—was known from the beginning. In the past month, a lawsuit revealed documents showing that Republican operatives in contact with the Trump administration were plotting as far back as 2015 to add a citizenship question with the goal of enhancing the political power of “Republicans and Non-Hispanic Whites.”
That information was not a part of this case, but it was in the public record, and Alito still chose to preserve his objection to the critics who had correctly noted that the Trump administration’s decision to add the citizenship question was racially motivated. That suggests Alito’s position here is not simply that baseless accusations of racism against people of color are wrong, but that criticism of actual racism is wrong.
Trumpism insists that his supporters not only accept obvious falsehoods, but also that they express umbrage at the very suggestion of dishonesty, even when documented proof to the contrary exists—and that for his critics to refuse to accept his lies is an act of unacceptable incivility. This is now also the moral philosophy of four justices on the Supreme Court.
Although the conservative justices may diverge from their colleagues on cases with little partisan salience, on the big cases, the Trumpification of the Supreme Court is complete. The Trump administration’s dishonesty and even its bigotry are no barrier to its success at the Supreme Court, even when it demands that the Court endorse blatant discrimination and disenfranchisement. All that Roberts asks is that they lie about it more convincingly. His conservative colleagues don’t even need that much.