Conservative justices on Tuesday appeared in favor of allowing a Trump administration-backed effort to include a citizenship question in the 2020 census.
During oral arguments, the Supreme Court’s conservative majority pushed back on the argument from opponents that the Commerce Department acted arbitrarily in adding the question, and that Commerce Secretary Wilbur RossWilbur Louis RossBannon's subpoena snub sets up big decision for Biden DOJ House panel, Commerce Department reach agreement on census documents China sanctions Wilbur Ross, others after US warns of doing business in Hong Kong MORE lacked the authority to include the divisive question.
Liberal members of the court, however, repeatedly pointed to studies that say inclusion of the citizenship question would cause fewer people to participate in the decennial survey, resulting in an inaccurate overall population count.
If the court rules in favor of the Trump administration, it will be another major win for the president at the Supreme Court. While several of his more contentious policies have been blocked or held up in lower courts, the justices have upheld Trump’s so-called Muslim travel ban and the transgender military ban, often citing the authority of the executive branch.
The justices will face a bit of a time crunch in reaching a decision. The Commerce Department, which oversees the Census Bureau, has said it will need to start printing census materials in June — the same month the Supreme Court normally issues its biggest decisions of the term.
The Trump administration leap-frogged lower appeals courts in asking the Supreme Court to take up the case.
The citizenship question has become a flashpoint for the broader immigration debate. Ross's announcement last year that the 2020 census would include a question on citizenship set off a series of legal challenges, including a lawsuit from a group of 17 states that appeared before the Supreme Court on Tuesday.
Census data is used to determine federal funding for states and municipalities. It also determines a state’s representation in Congress.
The states challenging the citizenship question were joined by the American Civil Liberties Union (ACLU) and the Democratic-controlled House in arguing that the question would cause noncitizens to skip the census, leading to a misrepresentative tally while hurting states with larger populations of noncitizens.
Ross and the Trump administration have repeatedly disputed that argument, saying the question is needed for better enforcement of the Voting Rights Act.
After Solicitor General Noel Francisco began his remarks Tuesday by saying a citizenship question had been asked in some form on the census for nearly 200 years, Justice Sonia Sotomayor, appointed by former President Obama, quickly interrupted him.
She said the question was not on the short-form version of the census distributed every decade since 1960.
“Every statistician, including this secretary’s statisticians, recommended against adding the question,” Sotomayor added.
Francisco said the administration would have a better collection of citizenship data by asking residents about their status on the decennial survey, rather than relying on available records and other statistical models.
But the liberal justices pointed to evidence presented in the case that indicated a citizenship question would hurt all of the data.
Justice Stephen Breyer, appointed by former President Clinton, noted that the federal statute on the census states that officials should use existing records "to the maximum extent possible" to determine certain kinds of demographic data, in order to keep the short-form census relatively brief.
He and other liberal members questioned how and when Ross made his decision to add the question, and why he didn’t use existing records instead.
Sotomayor in particular raised concerns about how the decision was made to add the question back to the census, noting that that the Commerce Department had reached out to the Department of Justice (DOJ) before being presented with the DOJ's argument that citizenship data was needed to enforce the Voting Rights Act.
Francisco said Ross determined "the benefits outweighed the costs" of asking a question on citizenship.
"If you add any particular question to the census, you're always trading off information and accuracy," he said.
The conservative justices appeared wary of agreeing that the citizenship question alone would cause a decline in responses.
Justice Neil Gorsuch, one of President TrumpDonald TrumpTrump criticizes Justice for restoring McCabe's benefits Biden: Those who defy Jan. 6 subpoenas should be prosecuted Hillicon Valley — Presented by LookingGlass — Hackers are making big money MORE’s appointees, questioned whether asking about citizenship was the driving force behind a decline in responses, and not other issues such as the length of the census.
He and fellow Trump appointee Justice Brett KavanaughBrett Michael KavanaughWhy Latinos need Supreme Court reform Feehery: A Republican Congress is needed to fight left's slide to autocracy The Hill's Morning Report - Presented by Facebook - Biden, Democrats to scale back agenda MORE noted that other countries, including Canada and France, ask about citizenship on their versions of the census. Kavanaugh also pointed to a recommendation by the United Nations that countries collect data on citizenship.
Barbara Underwood, solicitor general for the state of New York, argued that the U.N. recommendation said the data had to be collected in such a way that it wouldn't impact the overall results.
Justice Samuel Alito, appointed by former President George W. Bush, appeared to be one of the most skeptical members of the court when it came to the risks posed by asking about citizenship.
He pressed the opposing attorneys on whether Ross could have been considered to have acted arbitrarily and capriciously if he had accepted a recommendation from Census Bureau statisticians that they would create a model to help estimate citizenship, even if they didn’t provide definitive proof that it would be a better solution than relying on existing records or other options.
He also raised the possibility that noncitizens might not be responding to a citizenship question for factors beyond their status.
"What jumps out is the fact that citizens and noncitizens differ in a lot of respects other than citizenship. They differ in socioeconomic status. They differ in education. They differ in language ability," Alito said.
"I don't think you have to be much of a statistician to wonder about the legitimacy" of believing that there will be a lower response rate only because of the question, he added.
Underwood disputed Alito's premise, citing "strong empirical evidence" showing a lower response rate that she said the administration did not dispute in its argument.
"I thought they did," Alito replied.
The court previously agreed to allow two other parties — the ACLU and the House — to present arguments against adding the question. The justices extended the oral arguments, from one hour to 80 minutes, allowing them more time than normal to question the attorneys appearing before them.
Dale Ho, an attorney with the ACLU which represented a group of immigration organizations in the case, argued that the Trump administration's move to add the question would result in fewer people answering the survey.
He said the evidence in the case indicates that noncitizens who answer the citizenship question respond inaccurately one-third of the time, meaning the data on the question "will be contaminated by those incorrect responses" and ultimately hurt "the secretary's stated purpose of improving the accuracy of citizenship information."
Douglas Letter, the attorney representing the House, argued that asking the question would put at risk the data used to determine congressional representation.
"You can't undermine the accuracy of the actual enumeration in order to get information for the Voting Rights Act," he said.
The conservative justices pushed back against both assertions, questioning whether the evidence proves that asking about citizenship would hurt the rest of the collected data or if other factors are at play.
Francisco ended by saying that if the court blocks the addition of the question, it opens the door for U.S. residents to similarly boycott other census questions that they have an issue with, like asking about gender or sex.
"Are you suggesting that Hispanics are boycotting the census? Are you suggesting they don't have ... a legitimate fear?" Sotomayor asked.
"Not in the slightest," Francisco replied, saying he believed it is possible that ruling against the question might "empower groups to knock off any question of the census that they found to be particularly objectionable."
Updated at 3:02 p.m.