“There is no smoking gun here; only smoke and mirrors,” the Department of Justice insisted when liberal groups uncovered evidence that the Trump administration was seeking to add a citizenship question to the census for the purpose of enhancing white voting power through redistricting. The Justice Department characterized the new evidence as resembling “the product of a conspiracy theorist.” The respondents’ “conspiracy theory” was “implausible on its face,” Solicitor General Noel Francisco echoed in a brief written for the Supreme Court in June.
The conservative justices on the Supreme Court apparently found this argument very persuasive. The evidence that the Trump administration had consciously sought to use the census to strengthen white voting power was ultimately not a part of the case before the Court, which came down to whether the Trump administration had violated administrative law by misrepresenting its motives in adding the citizenship question.
Nevertheless, Justice Clarence Thomas mocked a lower-court judge for concluding, as did a majority of the Court, that the Trump administration misled the public when it said it wanted to add the citizenship question to better enforce the Voting Rights Act. “A judge predisposed to distrust the Secretary or the administration could arrange those facts on a corkboard and—with a jar of pins and a spool of string—create an eye-catching conspiracy web,” Thomas wrote in an opinion joined by Justices Neil Gorsuch and Brett Kavanaugh. Thomas even went so far as to accuse the majority of echoing “the din of suspicion and distrust that seems to typify modern discourse.” Justice Samuel Alito, for his part, argued that it was no business of the Court if the government had lied about a decision affecting the entire country.
Then Donald Trump himself confirmed that the “conspiracy theory” put forth by groups challenging the legality of the citizenship question was true.
“Number one, you need it for Congress for districting, you need it for appropriations, where are the funds going, how many people are there, are they citizens or not citizens?” Trump told reporters on Friday, explaining why the administration was reversing its original decision to abandon the citizenship question. That statement not only confirms that the majority in the census case was correct, it proves that the dissenters were defending a lie, while accusing their opponents of bad faith. Ironically, this sort of behavior is all too typical of Trump backers like Thomas.
This is a constant risk for Trumpists—that they will commit to vigorous defenses of Trumpian falsehoods, only to be made fools when the president abandons the deception or changes his mind, when it becomes politically convenient. Fortunately for them, the cult of personality surrounding the president is immune to the shame of forcefully defending things its members know not to be true. Unfortunately for the rest of us, that cult of personality now includes members of the Supreme Court, willing to give their implicit blessing to schemes designed to entrench white voting power, in defiance of the Constitution’s guarantees of equal protection regardless of race. Republican elites have concluded that restricting the electorate is a more reliable path to power than appealing to minority voters, and are now committed to the course of rigging elections so that they can maintain dominance even when they fail to win a majority of the votes.
For those keeping score at home, The Washington Post has documented at least 10 instances of the Trump administration contradicting its own statements on the citizenship question. When the Trump administration told Congress and the public that the citizenship question on the census was needed to enforce the Voting Rights Act, that was a lie. When the Trump administration denied that its intent was to use the data to draw congressional districts that would enhance white voting power and therefore grant Republicans an advantage, that was false. When Commerce Secretary Wilbur Ross told Congress the data would not be used for immigration enforcement, that was untrue. Francisco told the Court that the census questionnaire had to be finalized by June; the Department of Justice has now reversed that position.
Ideally, the executive branch lying to the public and the other branches of government would hold certain consequences. But Democrats in Congress are too frightened and weak to properly discharge their oversight duties, and at least four justices on the Supreme Court believe that the law should bend to whatever falsehood Trump decides to embrace. Only Chief Justice John Roberts’s pained conclusion—that under administrative law, the Commerce Department could not justify its census decision based on public falsehoods—prevented the Trump administration’s dishonesty from being rewarded.
But even Roberts was willing to go only so far. The chief justice defended the constitutionality of the citizenship question, and implied that even if the motives for adding it were partisan, that might be acceptable—only the administration’s dishonesty was unlawful.
That raises the question of whether a renewed Trump-administration push to add the question might ultimately be successful. Mark Joseph Stern has argued that any rationale the Trump administration could come up with now would by definition be pretextual, but I am not so sure Roberts will see it that way, and his conservative colleagues were willing to back the Trump administration even when they knew it was lying.
The Supreme Court has seen lower moments in its history, such as its rewriting of the Fourteenth Amendment to protect corporations rather than the former slaves it was designed to enfranchise. It has countenanced greater evils, such as when it concluded that black people could never be citizens and when it gave its constitutional imprimatur to Jim Crow. But it has never been more pathetic.