The Supreme Court heard oral argument on the issue of whether the Commerce Department can add a citizenship question to the Census. Various District Courts ruled against the Trump administration, and the administration sought the unusual remedy of direct review by the Supreme Court.

We previously covered the issues in our post when the Supreme Court granted direct review, Supreme Court agrees to hear Census citizenship question case.

The oral argument was today. You can read my highlighting of the transcript (pdf.) in full at the bottom of this post.

The consensus among mainstream media commentators was that the administration is going to win.

Adam Liptak at The NY Times wrote, On Census Citizenship Question, Supreme Court’s Conservatives Appear United:

The Supreme Court’s conservative majority seemed ready on Tuesday to allow the Trump administration to add a question on citizenship to the 2020 census, which critics say would undermine its accuracy by discouraging both legal and unauthorized immigrants from filling out the forms…. It appeared to divide the court along the usual lines, with its five conservative members poised to defer to the administration and the court’s four liberal members ready to question its motives and methods…. Justice Sonia Sotomayor, who took the lead in challenging the administration’s proposal, said that adding the question would do damage to the fundamental purpose of the census, which is to count everyone in the nation. “There is no doubt that people will respond less,” she said. “That has been proven in study after study.” Solicitor General Noel J. Francisco, representing the Trump administration, acknowledged that the question could depress participation. But he said the information it would yield was valuable. “At the end of the day,” he said, “if you add any particular question onto the census, you’re always trading off information and accuracy.” How to strike that balance, he said, was a policy judgment properly made by Mr. Ross. The more conservative justices appeared to agree.

Politico’s Josh Gerstein and Ted Hesson wrote:

The Supreme Court seemed divided along ideological lines Tuesday as the justices heard arguments about the Trump administration’s move to add a question about citizenship to the 2020 census. All of the court’s four liberals sounded highly skeptical about Commerce Secretary Wilbur Ross’ decision, which three federal judges found illegal because it lacked a coherent explanation and could lead to a large undercount of noncitizens as well as Americans of Hispanic origin…. Most of the court’s conservatives appeared inclined to green-light Ross’ move, with Justices Neil Gorsuch and Samuel Alito appearing most hostile to states and civil rights groups’ legal challenges to the citizenship question. Alito said he was convinced of deep flaws in estimates that adding the question could lead to roughly 5 percent fewer responses from noncitizens. “I don’t think you to have to be much of a statistician to wonder about the legitimacy of concluding that there is going to be a 5.1 percent lower response rate because of this one factor,” Alito declared. He and Gorsuch said factors other than citizenship, such as income or socioeconomic status, might explain why noncitizens more frequently ignore census surveys. Chief Justice John Roberts seemed to be in the same camp as Gorsuch and Alito, but was somewhat less strident in his questions. Justice Brett Kavanaugh, who directed probing questions to both sides, seemed to give less away about his views of the case.

Having read the transcript, it certainly does appear that we’re heading for a 5-4 split, the issue is whether any of the conservatives will peel away.

I thought the best question was from Justice Ginsburg, who appeared to side with the challengers but asked a question that goes to the heart of the matter: Why are the courts involved in this anyway? Congress could prohibit Census questions about citizenship, but it hasn’t:

JUSTICE GINSBURG: Mr. Letter, the Congress has the primary control over what the census will be, not the executive, and Congress has been alerted to this citizenship question for some time, and it has done nothing about it. So one question is who should decide? Congress is silent. Should the Court then step in? [Tr. 81-82]

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Dept Commerce v. New York – Census Case – Supreme Court Oral Argument Transcript – April 23, 2019 – Highlig… by Legal Insurrection on Scribd



