Adam Serwer: The Supreme Court is headed back to the 19th century

The disparate approaches taken by two of the Court’s conservatives to the Voting Rights Act reflect the right’s dueling impulses toward civil-rights laws. Where Scalia rejected the very effort to guarantee black people the same right to cast a ballot as white people as a “racial entitlement,” Roberts insisted that he agreed with the law’s underlying premises, but that the statute now did more harm than good.

Lingering beneath the surface was a defining question for the American right: Does it agree with Roberts that “any discrimination in voting is too much”? Or with Scalia, who saw ensuring equal participation in the polity as a black “racial entitlement”?

The Supreme Court’s looming decision over the addition of the citizenship question on the U.S. census will hinge on the answer to that question. The census provides the basis for congressional apportionment and the distribution of federal resources. Empirical studies of the impact of adding the question have determined that it would result in a dramatic undercount of Latinos and immigrants—exactly contrary to one of the Donald Trump administration’s stated rationales, that it would provide a more accurate count.

Since the rise of Trump, the American right has been offered a stark choice between the democratic ideals it has long claimed to believe in, and the sectarian ethno-nationalism of the president, which privileges white identity and right-wing Christianity over all. Scalia didn’t quite have it right: The fundamental question for American democracy since the founding has indeed been whether it is a “racial entitlement,” but only because of those who have tried for centuries to ensure that white people alone are entitled to it.

The Roberts Court has already taken steps in this direction. Last year it endorsed Trump’s travel ban, despite the president’s public statements identifying Muslims as the ban’s target, on the basis that the order itself did not mention religion, a blueprint for allowing further discriminatory efforts to pass constitutional muster as long as the high court’s conservatives retain control. Later that year, the conservative justices, self-styled champions of the freedom of religion, denied a request by a Muslim death-row inmate to have an imam present for his execution, forcing the condemned man to make do with the prison’s Christian chaplain. In both cases, the Court’s conservatives could hide behind the letter of the law in dismissing the government’s official disapproval of Islam. But recent revelations in the census case will force the Roberts Court to decide whether America is a nation for all of its citizens, or a white man’s republic.

Garrett Epps: Will John Roberts block the triumph of legal conservatism?

On the surface, State of New York v. United States Department of Commerce appears to be a dry question of administrative and constitutional law. In January 2017, the news leaked that the Trump administration wanted to add a question asking census respondents whether they were American citizens. The Trump administration enlisted the acting head of the Civil Rights Division of the Department of Justice, John Gore, to state that the question should be included to improve enforcement of the Voting Rights Act. Wilbur Ross, the head of the Department of Commerce, which administers the census, insisted to Congress that this was the reason for the addition of the question. In fact, Ross had sought the addition of the question long before this rationale was provided.