The Supreme Court has decided to review the census question case, putting it on the docket for April arguments and skipping the Second Circuit altogether. This will allow the Court to weigh in on the issue before the census forms go out. Given the Court’s makeup and the documented history of conservative justices clearing a path for racist forms of voter suppression, it certainly feels like citizenship questions are back on the table.

To review: Commerce Secretary Wilbur Ross decided to add a citizenship question to the upcoming census forms. The Constitution requires that a decennial census takes place, and it requires “whole persons” to be counted, and it doesn’t say anything about only counting “citizens,” so the question is unnecessary. Ross and other Republicans want it because they think that asking about citizenship will decrease the likelihood of non-citizens returning the forms. Non-citizens are still eligible for many government services, some of which are doled out on the basis of population, but they don’t always know that. Moreover, non-citizens — at this point RIGHTFULLY — fear that checking a non-citizen box could alert I.C.E. to their presence, and nobody wants the American Gestapo busting down their doors, terrorizing them, and separating them from their children.

It’s a win-win for Republicans if they can include this question: either non-citizens don’t answer and more resources go to… Wyoming or wherever white people live amongst themselves, OR they do answer and I.C.E. gets to crack some skulls to amuse Trump’s base.

The inclusion of the question was challenged in court and the government was totally annihilated by the trial court. U.S. District Judge Jesse Furman issued a 277-page ruling accusing Wilbur Ross of making false statements, giving false reasons, and violating a “veritable smorgasbord” of federal rules.

In normal times, the trial court is the “finder of fact.” If the trial court finds that Wilbur Ross lied, that’s a “fact” now that the appellate courts have to assume is true. If the trial court finds that he acted in “bad faith,” that’s also a fact. Appellate courts can rule that acting in bad faith doesn’t matter, but they can’t retroactively assume good faith on behalf of Ross.

These are not normal times. Already, the Supreme Court has taken the unusual step of injecting itself into the trial process. The Supreme Court blocked an order compelling Ross’s deposition under oath. Conservatives Clarence Thomas, Samuel Alito, and Neil Gorsuch tried to end all pre-trial fact gathering entirely. Gorsuch has already judged the case:

“There’s nothing unusual about a new cabinet secretary coming to office inclined to favor a different policy direction, soliciting support from other agencies to bolster his views, disagreeing with staff or cutting through red tape,” Justice Gorsuch wrote at the time. “Of course, some people may disagree with the policy and process. But until now, at least, this much has never been thought enough to justify a claim of bad faith and launch an inquisition into a cabinet secretary’s motives.”

If I could explain the difference between a conservative justice and a progressive one in one line… it would be reductive. BUT ANYWAY, my line would be: A conservative sees racism, bigotry, and sexism as “one policy option among many,” a progressive sees those things as facially unconstitutional.

Thomas, Alito, and Gorsuch are already all but on the record in support of the citizenship question. Brett Kavanaugh is a partisan hack who was credibly accused of attempted rape. Chief Justice John Roberts has a long and terrible history of opposing racial equality, especially when it comes to voting rights and representation. I count five votes for the citizenship question on the upcoming census. I count five votes for an apportionment of Congressional seats and Electoral College clout in a manner that massively under-counts non-whites living in America.

Remember that when somebody tells you that the Electoral College is anything other than a system of political apartheid meant to uphold white supremacy.

Supreme Court to Hear Case on Census Citizenship Question [New York Times]

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.