Voting Rights and Democracy

OP-ED: The Census Case Will Define the Roberts Court

More than two centuries ago, the Constitution’s Framers decided the United States would be the first nation to make a count of all persons an important method of ensuring a democracy. Sadly, this history was barely acknowledged at Tuesday’s oral argument in Department of Commerce v. New Yorkwhich involves a challenge to Commerce Secretary Wilbur Ross’ decision to add a citizenship question to the 2020 census, a change that would skew the headcount mandated by our foundational charter. On Tuesday, the Constitution was missing in action.

The court’s conservative justices, echoing last term’s 5–4 decision upholding President Donald Trump’s travel ban, suggested in their questioning that they should defer to the secretary’s decision to add a citizenship question to the 2020 census, notwithstanding Ross’ blatant manipulation of the administrative process. Solicitor General Noel Francisco argued that this was a policy judgment based on weighing costs and benefits, which should be left to the secretary. “You’re always trading off information and accuracy,” Francisco insisted. Courts, the solicitor general seemed to argue, have no business interfering.