Since then, the administration and its allies have split their time between reviling Roberts and demanding the opportunity to tell a better lie. If they are denied that chance, they seem to be coming up with reasons that Trump can add the question anyway, despite the Supreme Court’s order.

In his majority opinion, Roberts wrote that a citizenship question might be permissible, and might even be a good idea—if Ross had actually based the decision to include it on a valid reason. Instead, Roberts wrote politely, “The VRA enforcement rationale—the sole stated reason—seems to have been contrived.” A citizenship question might pass review if it was supported by truthful and relevant reasoning, Roberts wrote.

Many have taken this as an invitation to Ross to hastily provide a different explanation and get the Court’s approval of the question on the 2020 questionnaire. I read it differently. I think Roberts wanted to signal that a future administration might be able to include such a question if it had a good reason—but that this administration blew its chance. If that’s the right reading, the case is effectively over.

Certainly that seems to be how the lower-court judges involved read the case. Administration lawyers had asked to freeze the cases until the department could come up with a new rationale; district courts in both New York (where the original case was filed) and Maryland (the site of a different suit charging that deliberate racial discrimination is behind the question) have politely declined.

In the interim, Trump has said that the real reason was political after all: “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?” he said Friday. Trump’s lawyers had told the Supreme Court that those political reasons had nothing, nothing, nothing! to do with the question. Now Trump says they did.

Can the administration go back and cite those reasons now? Here’s a basic rule of civil procedure, called “claim preclusion”: Ordinarily, parties before a court get a fair shot to make any arguments and offer any evidence they have. If they lose, parties don’t get a complete do-over on the grounds that they want to use arguments they could have used before because if they had, maybe they wouldn’t have lost. Such arguments, courts say, are “waived.”

Trump seems to think he can avoid preclusion by issuing an executive order imposing the question. As of July 7, 2019, however, the federal courts still have the power to set aside unconstitutional executive orders. Ask the late President Harry Truman, who, as commander in chief, seized American steel mills in order to end a strike that was interfering with the Korean War effort. The Supreme Court told Truman he had no such power, and Truman meekly gave back the mills. Maybe the label “executive order” will magically intimidate Roberts. But I wouldn’t bet on it.