



Secretary Ross said he has broad discretion to conduct the Census and courts should stay out of it. He had determined that asking about citizenship is necessary for the federal government’s interest in enforcing voter rights laws. Given that the citizenship question has appeared on the U.S. Census many times in the past, Ross defended, adding it now is nothing unusual.

The Supreme Court ruling

Several Justices wrote opinions on the case, and even the majority opinion written by Chief Justice Roberts was splintered (signed onto by other Justices only in part). Here’s the basic ruling and the precedential take-away.

The majority ruled that the Commerce Secretary Ross has broad power to administer the U.S. Census, and under ordinary standards of agency review, the Court will not overturn the Secretary’s decision to add the citizenship question. However, five Justices concluded, there is one exception to the general standard of agency review that requires the Court to send the case back. If a court finds a “strong showing of bad faith or improper behavior” on the part of the executive agent, then the court can look deeper at the agency decision-maker’s “mental processes.”

Based on the record as a whole in this case, a five-member majority (Roberts plus the liberal wing) determined that the government’s justification for adding the citizenship question was pretextual. The court reviewed the evidence regarding Secretary Ross’ decision-making process and found “a significant mismatch between the decision the Secretary made and the rationale [Ross] provided.”

The record shows that the Secretary began taking steps to reinstate a citizenship question about a week into his tenure, but it contains no hint that he was considering [voting rights] enforcement in connection with that project. The Secretary’s Director of Policy did not know why the Secretary wished to reinstate the question, but saw it as his task to “find the best rationale.”

Roberts’ opinion continued saying that the record shows that DOJ was only investigating the connection between citizenship information and voting rights enforcement upon a request by the Commerce Department, and not inherently for voting rights enforcement.

Thus, based on a review of the record, the Court ruled the voting rights justification was pretextual. The case will go back to the lower court for Secretary Ross to better explain the justification for adding the citizenship question.

The conservative wing was divided

Justice Roberts lost support of his conservative comrades in deciding the case should be sent back. Justice Thomas argued the Court improperly created a “pretext” rule that can invalidate agency action over and above the general APA standard. Alito wouldn’t have reviewed Secretary Ross’s actions at all (arguing federal law gave unreviewable discretion to the Secretary to conduct the Census).

The liberal wing

Justice Breyer wrote an opinion for the liberal wing. Although this group did agree that the case should be sent back because the Secretary’s justification for the citizenship question was pretextual, it would have rejected the Secretary’s actions under the general APA standard as well.

For more information on the arguments in the case, read our earlier analysis below.