John Roberts had a problem. As a Republican, he of course wants racial minorities to have as little representation as possible. The Trump administration wanted to advance this core goal of his party by adding a citizenship question to the Census, which would demonstrably make the response rates in poor and majority-minority neighborhoods significantly lower. But the party went out of his way to embarrass him. First of all the Trump administration is run by incompetent boobs, and the rule was implemented in a way that didn’t come close to meeting the standards of the Administrative Procedures Act. And the pretext they come up with to justify the rule change — enforcing the Voting Rights Act — is world-class trolling showing they won’t even try to come up with a reasoned justification. But you can get around all that if you don’t actually care about the law — which, on an issue of major interest to the Republican Party, Roberts certainly doesn’t — and the illegalities are technical issues that won’t attract public attention. But while you’re writing the opinion giving Trump a pass a Republican racist vote suppression guru’s estranged daughter releases smoking gun emails leaving no doubt that the census question was motivated by racist vote suppression and nothing else. It’s too much. Once again Roberts strategically changes his mind and decides to narrowly rule against the census over the outrage of the Daily Caller op-eds filed by his Republican colleagues.
But there’s more than one way to disenfranchise a minority resident. After basking in the glow of your Moderate Bipartisan cred, you can just use the shadow docket to get the substantive result you and Trump wanted all along — undercounting racial minorities — while stories about you continue to assert your courageous willingness to stand up to Trump. Is your siding with Trump at all legally defensible? Ha ha no. The government needed to show “irreparable harm.” As Sotomayor’s dissent observes, here’s the balance of harms if the Census is stopped prematurely:
- Affected communities: undercounts mean underrepresentation in legislatures and being denied their fair share of federal funds.
- The federal government: literally nothing, since they say that they will not be able to meet the statutory deadline to complete the sentence even if the count is stopped now.
But in the tradition of Scalia’s stay opinion in Bush v. Gore, if you define “irreparable harm” as “an outcome Republicans don’t like,” you’re good. And since it’s the shadow docket, you don’t even have to make Scalia’s mistake of trying to justify yourself and showing your whole ass! You can just say nothing.
Roberts is one of the few elite Republicans who understands that you can shear a sheep many times but skin it only once. The problem is that the median vote is now someone likely to be inclined to rob everyone blind and go to Argentina because nobody ever thought of this before. And they may well get by with it, at least in the short term. Trump could pull of an even more improbable upset. Republicans holding the Senate would only be a Trump-in-2016 scale upset because it massively overrepresents white voters. And if Dems get the trifecta the Feinstein wing of the Democratic Party may decide that it’s cool with Biden being completely unable to govern if it preserves The Precious Appearance of Comity in the World’s Worst Non-Deliberative Body. But they’re taking a major risk. Roberts understood how to get Republicans 90% of what they want without triggering an Article III response or mobilizing ordinary Democratic voters against the Court. The Covid Barrett Court is likely to be much less risk-averse, and while it might work out for them it might not. The fact that Joe Biden isn’t willing to rule out court-packing should be a warning sign, and somebody should send Senate Dems the contact info for Frankie Five Angels’s brother in Sicily.