A Divided Court Decides a Contentious Census Dispute

In a closely-watched case, the United States Supreme Court recently ruled that the Commerce Department may not proceed with its plan to add a citizenship question to the 2020 Census. The opinion in Dept. of Commerce v. New York is worth reading because it tells a compelling story about a government agency running afoul of the accepted procedures for governing.

The press has covered this issue extensively, with many articles about whether the Census should include a citizenship question. Apart from the merits of the dispute, the Supreme Court’s opinion is noteworthy for two reasons.

First, the Supreme Court’s opinion echoes many of the findings from the District Court’s lengthy opinion. In New York v. U.S. Dept. of Commerce, 351 F.Supp.2d 502 (S.D.N.Y. 2019), Judge Jesse Furman considered an extensive record, reviewing many documents and presiding over an eight-day bench trial. Judge Furman’s opinion is more than 175 pages long. The Supreme Court did not agree with Judge Furman on every issue, but it did rely on his detailed analysis as it handled the appeal on an expedited basis.

Second, the Supreme Court’s opinion offers a glimpse into the inner workings of a divided Court. Chief Justice John Roberts’ opinion suggests that the Court did not take a direct path in reaching a decision.

• Parts I and II of the Roberts opinion (which framed the issue and considered a preliminary jurisdictional question) were joined by all nine Justices (9-0).
• In Part III of the opinion (which held that the Commerce Department’s plan was proper under the Enumeration Clause of the United States Constitution), Justice Roberts was joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh (5-4).
• Part IV of the Opinion is more complicated.
  • In Part IV-A (which held that the courts can review whether the Commerce Department was acting within its authority), Justice Roberts was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, Elena Kagan, and Brett Kavanaugh (6-3).
  • In Part IV-B (which held that, broadly speaking, the Commerce Department had discretion to include a citizenship question), Justice Roberts was joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh (5-4).
  • In Part IV-C (which held that the Commerce Department’s plan was reasonable under the federal statutes that govern the Census process), Justice Roberts was joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh (5-4).
• In Part V (which held that the Commerce Department’s plan was unlawful because Commerce had misrepresented its motivation and procedure that led to its plan), Justice Roberts was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan (5-4).

Notably, only Justice Roberts joined each part of the Court’s opinion. But he navigated through the differing viewpoints so that every word of the opinion gained support from at least five members of the Court. A majority of the Court agreed that the Commerce Department (1) developed its plan in an unlawful manner and then (2) gave a “contrived” justification for its plan. Because the decision-making process was unlawful, the Supreme Court blocked the plan and sent the case back for further proceedings.

The next move is back at Commerce. The Commerce Department might try for a do-over, in order to make a better record to support its decision. And perhaps Judge Furman will hear more evidence about how Commerce developed its plan. But whatever happens, the Commerce Department needs to move quickly, because the Constitution requires that the 2020 Census must happen in a timely manner.