Home / General / An Article III judge can afford to be made to look ridiculous

An Article III judge can afford to be made to look ridiculous


It is grimly hilarious that Trump wasted little time admitting what four Supreme Court justices in two Daily Caller op-eds that will also be published in the United States Reports denied or willfully ignored:

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.  

Again, the best case scenario here is that the Trump administration engaged in blatantly illegal actions and lied repeatedly about them in federal court, and four members of the nation’s highest Court thought that was fine, and another thought it would have been fine had they come up with a slightly less intelligence-insulting pretext (which he invited them to provide rather than doing what any Chief Justice worthy of the title would have done and ruled that the process could not possibly be salvaged.)

There’s also a reason that Trump, Barr et al. are pushing hard to get their illegal vote suppressing question done:

But since Trump’s tweet, Justice Department lawyers have been working furiously to find a way to appease him and devise a legal maneuver that would allow the question to be added with the Supreme Court’s blessing. As they deliberated options Thursday, the lawyers were pessimistic about their chances, according to people familiar with the matter, who spoke on the condition of anonymity to describe internal deliberations.

Not all Republicans agreed with Trump’s decision to plunge back into the fight. And some moderate Republicans and Trump advisers characterized it as a waste of time. “The census is part of the legacy of our Founding Fathers. There’s no reason to weaponize it in a country that was, is and will be composed of immigrants,” said Dan Eberhart, a prominent GOP donor.

But conservative legal figures — including Leonard Leo, head of the Federalist Society — have been especially vocal in urging Trump not to stop fighting for the citizenship question, according to advisers close to Trump.

Well, that’s ominous! I’m also reminded of the flurry of stories arguing that the sleazy Iran Contra cover up guy should be given the benefit of the doubt:

Come and join the party dressed to kill.

Marty Lederman has much more.

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