My piece about the last day of the latest Supreme Court term has some comments about Department of Commerce v. New York. The TL; DR is 1)Breyer’s opinion is obviously correct that even on the record before Court the addition of the citizenship question was illegal; 2)if Roberts actually stops the citizenship question from being added to the census he will deserve credit; 3)if Roberts is just looking for a slightly less intelligence-insulting pretext from Commerce before he allows the question he deserves less than no credit. Whether #2 or #3 applies is just an open question now.
However, I do wish to share some inadvertent classics of conservative comedy writing in the “being accused of racism is far worse than racism” vein. Sam Alito, Don Roberts’s top earner, laments the end of American innocence:
It is a sign of our time that the inclusion of a question about citizenship on the census has become a subject of bitter public controversy and has led to today’s regrettable decision.
It is a sign of our times that the administration president whose rise to power was based on white nationalism would try to manipulate the census consciously to suppress the votes of racial minorities, and that the party’s elites would overwhelmingly defend these actions, yes.
While the decision to place such a question on the 2020 census questionnaire is attacked as racist, there is a broad international consensus that inquiring about citizenship on a census is not just appropriate but advisable.
Whoa, whoa, I can’t believe that a Supreme Court justice is citing FOREIGN LAW American constitutionalism has never seen such outrageous conduct!
Anyway, this is just classic disingenuousness, from the same bad conservative op-ed family as “but in France abortion is harder to get on paper after the 1st trimester!!!111!!!!111!!!” In other countries they put citizenship questions on the census, and in other countries constitutional courts don’t hold that civil rights legislation becomes unconstitutional if it’s working to well, so what’s your goddamned point.
Alito’s attempts to mislead through decontextualization notwithstanding, the argument is not that asking about citizenship on the census is inherently racist, it’s that this administration adding the question how it added it for the purposes it added it is racist (in addition to being procedurally illegal.) Alito’s description of the argument is like saying that Yick Wo stands for the proposition that you can’t pass safety regulations that apply to laundries. Which Alito implicitly recognizes:
To put the point bluntly, the Federal Judiciary has no authority to stick its nose into the question whether it is good policy to include a citizenship question on the census or whether the reasons given by Secretary Ross for that decision were his only reasons or his real reasons.
Yes, the policy can’t be found to be racist if it’s presumptively impermissible to question why a regulation was enacted!
Justice Thomas has some similar content:
The District Court’s lengthy opinion pointed to other facts that, in its view, supported a finding of pretext (discussing the statements, e-mails, acts, and omissions of numerous people involved in the process). I do not deny that 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. (inferring “from the various ways in which [the Secretary] and his aides acted like people with something to hide that they did have something to hide”)
Right, it’s the district court judge that’s biased here. You would have to be some kind of conspiracy nut to think that the administration was trying to underrepresent minorities in the census count just because it used a mechanism that would underrepresent minorities in the census count and the reasons it have to justify its decision were farcical in the extreme.
What’s remarkable about all this is that Alito, Thomas, Gorsuch and Kavanaugh know that the interested public knows about the leaked Hofeller emails and hence knows that the reasons for including the citizenship question were flagrantly racist. The lower courts were actually too charitable about the Trump administration’s motives. That four Supreme Court justices would uphold its actions anyway is bad enough, but this wounded honor routine is embarrassing.