The only reason why the Republicans didn't get their way on the census is because the government's attorney lied to the supreme court. If it were not for a estranged daughter of the monster that gave us gerrymandering on steroids, the Roberts court would have given the fascists another victory. You got that part right.
Where you are misdirected is that fascists like Gorsuch, Alito, and, of course, that product of affirmative action, Thomas, don't even pretend that the law matters. To them, it is a tool of the rich and powerful to maintain power. The American legal system failed the average American a couple of generations back. Now, the rich use lawyers to sue as punishment knowing the cost will crush them.
The law that we were so proud of is a weapon of oppression.
10
It’s not just DACA. Any number of APA cases are now free from see-no-evil judging from Title X to enviro to workplace.
1
Neil Gorsuch and Kavanaugh are the peons of the paymasters who gave them their dream job. They have no ethics, no moral and they are only driven by the paymasters. Same goes for Clarence Thomas. They have no respect for law and they manufacture their own to support any illegal act supported by the paymasters. Our great nation is in the process of transformation to jungle rule as we see in Venezuela or Russia or con man’s favorite country North Korea, We know lot about cunning Mcconnell, the evil genius. He knows very well that his spineless morally bankrupt party cannot win any election if it is legitimate. Of course, Gorsuch and Kavanaugh will bless anything Mcconnell or the con man pathological liar child bully orders them to do. Gerrymandering case is a classic example where they went against existing law just to please the paymasters. Alas, our 23 democratic presidential candidates are too busy in campaigning for lust of power at the time when we need them to expose the tyrant and criminal acts by the con man, his corrupt family and cabinet. It is sad to see the rapid erosion of our great nation which was the moral leader in the entire world. We are a joke in the entire world because of the eccentric narcissist with zero governance skill in the White House. Divide and conquer is the strategy used by the evil genius. Alas, some people cannot see the true color of the phony con man and the morally bankrupt Republican party.
4
When does the ABA hold accountable the AG's office and attorneys
4
"It would take a heart of stone not to feel sorry for the administration’s lawyers, faced with defending the indefensible."
Ridiculous. If the DoJ lawyers had any principles, they'd resign. If they don't and they're just paid guns for hire, then they don't merit sympathy. Maybe disbarment, but not sympathy.
8
The court is illegitimate due to GOP shenanigan packing the court from a President that got there illegally. And, Obama being robbed by McConnell set the stage to turn the court into a panel of partisans.
7
And... it looks like the citizenship question is not dead.
3
Wonderful column. You're a clear thinker and clear writer; I understood you even though I have no background in the law. The administration is using the law as a fig leaf for its inhumanness and its cruelty, I think you're saying. The question you pose, if I understand you correctly, is whether or not SCOTUS will allow the law to be used in what is patently such a corrupt way. If Trump subverts the law here, then what other subversions will follow? What a sorry state we're in when the courts are continually clogged with Trump's efforts to show everyone that he doesn't have small finger. Seems to me that anyone who the forces of light put up against Trump should be devoid of narcissism and a need for self-aggrandizement. And I think it must a woman. I think we've all had it with hyper masculine macho-males running this country. I mean by that not just Trump but at this point all the Republicans. The entire, utterly shameless lot of them must go.
3
This is a lawless administration. Any idea that they will obey any law that they don’t like displays an ignorance of what is truly anti-American, anti-Constitutional and evil about Trumpism and Republicans. You vote for them at peril of your democracy and you believe them at peril of your life.
4
Still corrupt. Roberts can't save himself or his Court. The corruption is baked in. And I'll bet you money that within the week, the SCt accepts some lame justification for the citizenship question and signals full speed ahead on the further disenfranchisment of the American voter and locks in the growing fascist state that is Trump's America.
5
Shouldn't an alleged "legal expert" know that excluding the five countries with the world's largest Muslim populations from a travel ban means that it's NOT a "Muslim travel ban"?
3
Well, per my latest news alerts, Donny doesn’t really care what the Supreme Court thinks. That doesn’t sound like upholding the Constitution to me.
3
"But it's MY Supreme Court! Anyone who wasn't going to agree with me should have recused their disloyal traitorous self before taking up the case. Disgraceful. No other President has been so mistreated by a so-called "third branch" of government as I have."
4
I guess I have a heart of stone then. No one is forcing the DOJ lawyers to do Trump's bidding. In fact, their abling and abetting the criminal and fascist acts of the Trump administration make them even more disgusting in my eyes. They can quit or they can continue to support the Republican party line. Absolutely no empathy or sympathy should be afforded them.
3
Trump does not give a hoot about the Supreme Court or the laws of the United States of America. his behavior daily proves this. He would be much more comfortable in a lawless state like Putin's Russia.
2
"Once the behavior of Wilbur Ross, the secretary of commerce, was called out by the Supreme Court of the United States..."
Oh. Oh, so I get it, when you lie to the Supreme Court of the United States of America you "get called out".
You don't get charged. You don't get sent away. You actually lose any particular thing as a result of this calling out. In fact, you get a chance to go back and do it better next time.
Huh.
At least we know fer sher that, under Old Roberts this is not a partisan court. No way.
3
Please remember there are several justices who, apparently, have no issue with the bald faced lies. Trumpists through and through.
4
Brava!
1
Why have the Democrats not initiated hearing on Judge Kavanaugh lying to Congress during his testimony....Just saying.
3
Excellent article.
SCOTRP.....Supreme Court of The Republican Party!
3
But — but — the Supreme Court lied to US! At least Kavanaugh did.
2
Every day.
Every single day there is something disgusting that is revealed about this corrupt administration.
1
Where are we now?
What did we expect?
After all, just a few years back, Justice Taney's Court ruled that Afro-Americans, whether free or not, did not have the right to vote and were not citizens of the U.S. and territories did not have the legal right to exclude slavery during their formation.
It took a war that cost over a million lives to get that judicial matter corrected and the 14th Amendment written and ratified.
Where are we headed, when another greedy, powerful minority- much like the super-rich Southern planter class- uses subterfuge to maintain power over us all?
I'll tell you what surprises me. Ms. Greenhouse says that when Justice Roberts and others change their opinions midstream, they don't bother to rewrite what they have already written. Instead the 25 pages meant to defend the census are published along with a final five that change everything. The Supreme Court is pretty prestigious. Each justice has a bunch of clerks. Here they had weeks to rewrite their opinions and they couldn't be bothered.
If the Supreme Court is that lazy, I suggest Ms. Greenhouse find something else to write about.
I wish it were true that Trump can't take the Court for granted. However, the 5 right-wing, politically activist Justices will come through for him when it counts, and Donny's Roy Cohn will be arguing for whatever Donnie tells him to argue for. We can't count on Roberts on the important questions, and the other four righties are going to fall in line with Trump or any other Republican President. Anyone who didn't vote for Clinton shouldn't be griping about what the Supreme Court decides for a long time.
3
Four of the judges said it is okay to lie to this Court.
Roberts begged to differ.
It is pretty clear that Trump will refuse to honor
any Court order.
I'll take impeachment for 500 Alex
2
The pendulum has always swung back. Right, left, right, and so on for over 200 years. Maybe you can hold it back for a little while, but when it starts moving against you, it’s like a glacier, there is no stopping it.
1
More than ever, there are people who migrate to the United States of America for a better wholesome life. In the laws created for a country that recognize those individuals it gives a birthplace of origin; "we the people" have been addressed, as; "the United States citizens," of America. Furthermore, those running for government in the many choices that are within government should always remember 'US history and the civilizations; former and current when voted into office are taught of the many trials and tribulations of American historical data. Government should always represent "we the people" and not be individualized to the government official who deems personal conflict towards minorities.
1
I don't know if he turned a dissent into a majority opinion, as she suggests, but it does seem like in the end, Roberts just did what he has done before, tried to make an illogical decision palatable by giving something to the losing side. In earlier years, I argued that Roberts was just following his jurisprudence. No more. I agree he determines controversial cases based on how he thinks it will affect his legacy.
The idea that a question about citizenship on a census could actually be unconstitutional is almost beyond belief. But, maybe not so much in an era where ideas are not measured according to merit, but according to whether it resists Trump. E.g., if DT says there is an emergency at the border -scream "manufactured!" - followed by screaming about the emergency at the border. So long as it's his fault.
One of the great ironies of the present hysteria is the argument that DT is destroying our institutions. Never mind that those opposed to him want - no border or border enforcement agency, to end the electoral college (which would, not coincidentally, favor them), to destroy appreciation of the founders and the flag, to pack the court, supplant capitalism and apparently, end the idea of citizenship - it has to be him.
I've written this many time before. Never liked him and didn't vote for him. But, the resistance is far worse than he is and it now occupies the mainstream of a party. Can't wait to see their 2020 platform.
Into this maelstrom and turmoil, one must not forget the Supreme Court's systematic and continuing overruling of sound precedents. Stare decisis is being shredded like confetti. As Justice Breyer has observed, the majority is doing so without even a wink at upholding the rule of law. It would be nice if the Court would explain to us what it is doing.
3
An aspect of Census reporting that goes unmentioned is that by LAW the information and reports from the census department be numeric and CONFIDENTIAL, no names etc. It is gratifying to see that the citizenship question is not included. And if we are going to renew trust in our government institution, we need to tout the legal requirement for confidentiality and scrutinize reporting to ensure that is the case.
Thank, thank, thank you!
What a brilliant and easy to read overview of the courts deliberations and decision on the citizenship question.
And moreover the legal analysis and questions of DACA.
2
It's hard to believe that a prodigious intellect is a qualification for the Supreme Court. The dissenters on the Census decision have proven themselves to be nakedly partisan — and intellectually dishonest.
Maybe that’s the problem, that the conservatives on the court are simply dishonest. That they shape their opinions, not on the truth revealed by the evidence, or on the spirit of the Declaration of Independence, which George Will only yesterday reminded us, is the SOUL of the Constitution -- but upon an ideological, fundamentalist legal mission to establish a permanent, ruling minority of conservative, libertarian Republicans — in America.
Or perhaps they’re just FUNDAMENTALISTS, in a legal sense; Federalists, originalists, whatever they wrap their cultic identities in, functionally fundamentalists.
Humanity, compassion, and fairness are secondary considerations when it comes to their faith in the inviolable nature of the Constitution, which, according to them, cannot evolve intellectually and spiritually thanks to science, history, and legally, becoming ever more enlightened as a society. They’re like fundamentalist Christians for whom the Bible has all the answers, and taken literally, some of the cruelest dictates.
When challenged on anything that threatens their values or their cult, today’s conservatives (incl. at least 4 Supremes), will use the Constitution to justify even in the most dishonest, unconscionable arguments, policies, and laws.
5
Scotus not only avoided looking at the issue of gerrymandering, but by dropping the ball on the census question it has allowed itself to become instrumental in gerrymandering - on the GOP side, and in the crudest fashion.
What is democracy reduced to when the institutions put in place to protect fair play abandon their remit?
8
Four SCOTUS justices thought this was all just fine--and, in fact, they believe virtually anything a Republican president does is just fine. Trump needs just one more vote and he'll have the five votes he needs to make him king. Sounds ghoulish to say, but I fear the fate of the Republic depends on which current justice dies first. If it is one of the left-leaning judges, so help us.
5
I can't help thinking how much simpler it would be, how much less tortured the deliberations, if our leaders simply implemented policies that are supported by a clear majority of the American public. Then they wouldn't have to lie constantly about their motives. the process, and the results.
3
Here’s the thing- if adding the question is shown to be a reasonable and useful tool to fortify our democracy, the process should be slow and reasoned and not precipitous as is now the case. Why not take the census as is for now and use the ensuing 9 years to find the most helpful solution if indeed one is necessary? In other words, why the rush????
2
Considering our President won't back down and defy the Supreme Court, perhaps the best course of action would be an act of civil disobedience such as everyone selecting "not a citizen."
4
There is a chance, though perhaps only a small one, that the Supreme Court will decide the Affordable Care Act is unconstitutional in its entirety. Such a decision would dwarf one allowing Dreamers to be deported en masse.
In the meantime, lawyers will be working on the Census case over the Fourth, and Friday's session with the judge will be interesting.
Trump has tweeted himself far out onto a limb. I suppose he's familiar with the campaign to create state legislative districts based on citizen, not total populations. Here in Florida, that would significantly cut Miami's representation.
I think what is appalling is that four justices are ok with being lied to. They see the question more abstractly, as one that simply asks whether the executive can put such a question on the census regardless of the reason for doing so. When ignoring what is really going on becomes the hallmark of legal thinking then the courts will be irrelevant and people will look elsewhere for justice.
9
Looks like the court is too weak to stand up for what’s right. But sometimes the lies are just too much for even the court to whitewash.
So Kavanaugh “scrupulously avoided” mention of the evidence that made clear the administration’s rationale was a lie. No surprise there. Kavanaugh’s seat on the Court was itself secured through perjury and cover up.
8
Stating the truth that Trump's reason given for adding the citizenship question to the census was duplicitous and the reason given for overturning DACA is to avoid accountability, is not cynicism.
We are living in Sham America. Republicans have betrayed real America. Does anyone believe or trust that John Roberts supports real America? Is he, Thomas, Alito, Gorsuch and Kavanaugh not part of Sham America?
Just as Trump's rationale for overturning DACA is a lie to avoid accountability, so is Robert's rationale in the citizenship question a lie to avoid accountability...to history and more important, to the remnants of a moral nation. Roberts does not like being cornered into revealing the truth that he is a sham justice of a new Sham America. Avoiding the truth and his own ignominy are the only reasons Roberts does not always give sham decisions. Unlike Thomas, Alito, Gorsuch and Kavanaugh, Roberts still feels shame for betraying America.
2
---Despite the process of adding the Census question was willful and capricious wholly outside of administrative procedure
---Despite career Census employees stating the pernicious effects of adding this question
---Despite Ross lying to congress and lying to the court (I thought this was a felony in its own right?)
---Despite the clear evidence by emails that Ross was the push behind adding this question, not the Justice Dept
---Despite new evidence giving a clear dot to dot smoking gun path from the king of GOP gerrymandering to the Census Dept including word for word language and a description of using the VRA as a cover spelling out that it would actually benefit white GOP voters
Roberts begged the WH to give him a reason so he could claim plausible deniability.
I get that our government is allowed some deference....but not when they are breaking laws.
5
I never thought I would say this given his record to date, but it may well be up to Chief Justice John Roberts to save the Republican Party from the cult of Trump, and with it democracy and freedom.
Once the Supreme Court gives up the power to act as a co-equal branch check on government, and defender of the Constitution, it won't get it back.
As Trump's term nears, he understands that f he loses, he will have to finally face the nations laws he has avoided using the Roy Cohn school of legal ethics.
So he will push ever harder to see if anyone has the backbone to standup to him - to stop him unambiguously and in such a way it will give him pause from pushing further.
As he meets with Kim Jong-un for his help with the next election, working with Putin's GRU, in private conversations, he invites the former into the group of nuclear powers while ending sanctions.
Chief Justice John Roberts is now the pivotal vote on the Supreme Court. If he is the American I think he is, he will see Trump for the despot he is and stop him while he can.
4
"That would almost certainly have failed, because courts generally will not accept what they call “post hoc rationalizations,” explanations cooked up under pressure and after the fact."
Is that what you call it - coming up with a more believable lie after you have been caught in a previous lie?
Let me know if that ever works.
As usual, a well-reasoned essay from Ms. Greenhouse. The news this evening (Jul. 3) indicates a bizarre attempt by Trump to put the citizenship question back onto the census form. Is this an attempt to save Wilbur Ross's hide? In a normal, organized, morally upright administration not corrupted as this one is, Ross would have been forced to resign by now. But no: rule of law? Don't bother.
2
Well, four justices have no problem with lying to the Supreme Court.
3
Think of this as a contracts exercise in law school. The government of the United States of America made a promise: Give us your details, your information as pertains to your immigration status, and we will protect you from capricious deportation. The Dreamers (by definition) stepped up to the plate and took the offer. They did not have to do this. It was a big risk, and a huge act of faith in the honor and trustworthiness of the nation they grew up in. And then comes regime-change, and the same government now utilizes that act of faith in order to terrorize and threaten these very same people. These people fulfilled their end of the contract. The current regime, as is manifest in their behaviors going back decades, blows through contracts like confetti at some tiny political rally. Trust is the glue that holds us together as a nation, and as a planet, we need more of it, not less.
3
Interesting, but I think Roberts real objective was to warn the administration that the next time they want to rig our democracy in the Republicans' favour be sure not to botch the job by leaving such a trail of evidence revealing their real intent. Rigging our democracy to empower Republicans is fine. Just don't be so incompetent in disguising your motives.
5
Ignore the census and Trump's 4th of July ego show. Make him pay for it, not with your taxes. Stay home and enjoy real freedom.
1
"The citizenship question is now history, fortunately....."
Well, maybe not. It seems the court left the disingenuous Trump minions an opening to come back with at least a little more plausible lie. I think they will attempt that, and the Judicial Branch may fall in line. Absolutely disgusting.
We are living in Trumpistan.
4
The premise of this article is wrong. This Supreme Court has shown its willingness to accept lies as long as they are legally palatable. They demonstrated this point not too long ago with their decision on Trump's "Muslim ban." Clearly Trump's original version--an outright muslim ban as he'd been proclaiming during the 2016 campaign-- was not something the justices were going to be able to stomach. So they kept encouraging the administration to come up with a better lie until the lie eventually fit some legal cover.
This is exactly what they seem to be doing with the census question. Trump will come up with a version of his lies that the justices will be able to accept. Trump knows this, and so does the Court. It's like a rigged game being played right in front us in broad daylight.
2
Trump evidently takes it for granted that the Supreme Court can, or will, do nothing to enforce its decisions. To paraphrase Stalin, How many troops does the Court command.
64 year old R.N., B.A. :one of the saddest days of my life was when I realized the Supreme Court could be bought and paid for. Representative democracy is on life support.
1
If 45 seeks to avoid blame, always and everywhere, and tries very hard to present himself as the suffering servant and true victim at all times—and all that is indeed true—then it’s not a “cynical explanation” of his behavior to say he’s deflecting responsibility, it’s just calling it what it is.
I encourage Ms. Greenhouse to return to her wholehearted skepticism about the census case.
As Justice Breyer’s concurring/dissenting opinion oberved, there is no factual “argument for why the decision by Secretary Ross to add the citizenship question to the census was a reasonable one”. All the statistical evidence and expert consensus indicated that the question was NOT reasonable because it would make the census dramatically less accurate and the resulting government decisions less equitable.
So it appears that Justice Roberts cares less about the lawful administration of the census than he does about appearances. His Hotspur is willing to “cavil on the ninth part of a hair!”
The census was already granted one mulligan with the original three-fifths compromise for counting slaves. You only get one mulligan.
The Supreme Court doesn't matter. Congress doesn't matter. We live in the Trump dictatorship.
1
How many non-citizens will decline to be counted, regardless of the SCOTUS decision, out of simple self-preservation?
Why should they trust anyone, given the villainy of this most malevolent so-called President?
1
Probing the intentions of the executive is a dangerous exercise. DACA (the Dreamers) executive action by Obama, was undoubtedly intended by Democrats to fatten the base of their future voting base and not, as stated, to exercise "prosecutorial discretion" and not force illegal minors to leave the country. However, a Republican executive action appropriate on it's face like the census question becomes objectionable when motives are probed. What hypocrisy. Ms. Greenhouse is tireless in in constructing castles in the air to support her progressive views.
The justices of the Supreme Court are shills politically appointed by elected politicians who are typically supremely corrupt, providing corrosive advice that is neither binding, wise, nor free of charge. These elitists are the brethren of the elitist jackals who wrote the US Constitution and Declaration of Independence. We the people are long past a revolution that cries out to be initiated by free men and women. Trump and his criminal family are the last straw.
1
Americans’ desire for justice will be the conservatives’ undoing.
1
The U.S. Supreme Court (SCOTUS) is political PERIOD.
Congratulations Ms Greenhouse. Threatening Roberts and his court with “illegitimacy” worked again.
But this gambit , like racism charges, will loose potency with overuse. And if you loose in 2020, it will become moot altogether.
But this time, well played.
I’m sorry. Four justices said it was okay to lie. That’s not okay.
3
I believe we need to go to the actual source when we are discussing the Constitution. Here is what Section 2 of the 14th Amendment states:
“Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State... excluding Indians not taxed...”
Note the word "persons" -- not "citizens," but "persons." The Supreme Court knows the difference between "citizense" and "persons." So should we the people. Just as Second Amendment advocates say, "If you don't like what the Constitution actually says, then change it," I say to them "If you don't like. . . ." well, you get the point.
You keep talking about the "Court" but it's not the "Court." It's four Republican hacks who have lready decided how they'll vote and one other guy who might vote the right way and might not. This is a not a "Court." It's a partisan political disgrace.
1
Well, the lawyers of the Justice Department will have to use their skills the following way:
You got the law against you invoke the facts, you got the facts against you invoke the law, you got the law and the facts against you invoke the flag and the American apple pie.
1
As to the DACA question, I fail to see how a program established by royal, sorry presidential, fiat cannot be undone by by the same.
Lie to the Supreme Court? The one that believes that money is really speech, corporations are really people, and the first phrase of the Second Amendment, "A well regulated Militia..." was just some meaningless caprice that had absolutely nothing to do with "Original Intent" of the infallible Founding Fathers? That Supreme Court? Why I would not think of it.
4
If the 5-4 Supreme Court thinks that partisan gerrymandering is ok, then they probably should be ok with the DOJ saying that they just want the citizenship question on the census to help Republicans.
Pretty much the same thing.
4
You mean that only five out of nine allegedly learned individuals could ascertain that the republicans were really lying about their desire to defend the Voting Rights Act? That’s the same Voting Rights Act they have been relentlessly trying to destroy since its inception. What amazing powers of deductive reasoning.
7
This is a fascinating analysis. Thank you for having read Supreme Court decisions for a very long time.
The Times and its readers are fortunate.
2
It may be speculative to assume Justice Roberts changed his mind and ruled against the Trump administration on the census case because of the recent revelations showing the connection between the citizenship question and Republican Party strategy to depress the counting of Hispanics. But Justice Roberts has show some interest in preserving public confidence in the Supreme Court. Justice Roberts will still join the other conservative justices in cases near and dear to conservatives (favoring business over labor, limiting civil rights laws, allowing gerrymandering etc.), but he at least recognizes the need to pull back in cases where the fallout would be too costly to the Court’s reputation. Given the recent revelations about the origin of the citizenship question (from the computer drives), what is really disturbing (but perhaps not surprising) is that the other four conservative justices were still willing to swallow the Trump administration’s patently false narrative about the citizenship question.
5
@John C "Given the recent revelations about the origin of the citizenship question (from the computer drives), what is really disturbing (but perhaps not surprising) is that the other four conservative justices were still willing to swallow the Trump administration’s patently false narrative about the citizenship question."
As far as I'm concerned, that is the crux of the matter. And it is deeply disturbing. Trump has lifted the veil of propriety because he lacks a conscience and he is a lawless rube. Previously repressed by an idealistic vision imbued with hope , the idea that the Supreme Court justices are flawed men driven by their own partisan agenda only tempered by their purported duty to the rule of law, is deeply disturbing.
1
After conceding to the ruling yesterday and appearing to accept the SCOTUS ruling on the census, it’s now being reported on page 1 of this newspaper that Donald Trump, via Twitter, said the matter is definitely not over, he wants the DOJ to come up with a rationale and go back to the court to get the citizenship question approved.
Trump’s tweet apparently was seen by the federal judge who met the government lawyer yesterday and was told the matter was settled. He summoned the lawyer back today to ask what is going on, apparently the government’s lawyer was blindsided by the tweet and couldn’t answer.
So it looks like the DOJ lawyers will attempt to mollify the president by coming up with another rationale. If it goes back to the Supreme Court we will see what Chief Justice Roberts does. This, while the census forms are being printed without the question.
Happy Birthday, America.
7
Agreed, it is a difficult job to say the least in being members of White House Counsel. But those taking those jobs have done so willingly, and have years of experience and top notch education behind them. That such a team of experts cannot develop a sound, rational, well reasoned argument describing their position in this census case, and for the upcoming DACA case, speaks volumes to the shallowness of this administration's character and moral fiber.
Thank you, Justices, for your willingness to dig deep in your deliberations on this matter.
1
Roberts, in Department of Commerce v. New York, was knowingly reversing Judge Furman's decision and thereby endorsing a census constructed by Trump and the GOP to disenfranchise over 15 million people in the US entirely legally and the states they live in of the fundamental right of proportional representation all so gerrymandering could then be used to destroy American democracy and make it impossible for Trump and the GOP to lose.
The only reason Roberts changed his mind is because a GOP operative's daughter revealed documents proving it was an authoritarian power grab run through the Trump DOJ at the behest of Trump and Wilbur Ross with Ross and other Trump appointees committing perjury in furtherance of the conspiracy.
Trump and the GOP destroy our republic and 5 right-wing Supreme Court justices, including Roberts, advance it until evidence proving the full scope of a conspiracy accidentally comes to light. Authoritarianism took a slight hit because of Roberts' vanity. He changed one vote to protect his "legacy" while in Rucho v. Common Cause simultaneously preventing federal courts from reviewing any gerrymandering no matter how discriminatory and authoritarian.
The census was constructed to destroy American democracy via gerrymandering, yet Roberts and 4 other GOP yes-men on the Supreme Court decided no federal court can review any GOP gerrymandering. Thanks to the Supreme Court, Trump and the GOP can destroy American democracy without any citizenship questions.
5
I don't share the optimism of Ms. Greenhouse. Apparently, the four republican justices bought the trump administration lies -- hook, line, and sinker. In fact, I think that this decision indicates that the four republicans are willing to support The Donald regardless of the facts of the case or the law. So everything depends on the Chief Justice and I am not sure that you can put much faith in him.
Don't be surprised if the DOJ doesn't go back to court with a new "story" about why they need the citizenship question on the census. The way that I see the decision, the administration lost in court but the Chief Justice told them to try again with a better rational for why they should add the question about citizenship.
Ms. Greenhouse is a dear lady and I love to read her comments. But she is like many liberals and democrats. She is always trying to make out that the people on the court are all nice, well-meaning, well-intentioned, people. But I don't think that the republican judges are. In my opinion they are politicos from start to finish and will do anything possible to support the republican/business/Koch brothers side.
8
@Aubrey --continued--
I would not bet a dime on the Dreamers winning when their case comes up.
1
I would not place any bets at this time on what the court will or will not do. With Trump as president and the GOP firmly behind him, no institution, no rule of law can be considered secure. Conservatives have shown that keeping power is their only core principle. Any differences that arise are going be from disagreement over how best to keep that grip.
2
"The plan was to create and entrench Republican majorities in state legislatures by providing data for use if the Supreme Court gives the green light to counting only eligible voters in legislative redistricting."
Most Republicans wouldn't be bothered if citizens under voting age—that is, children under age 18—were excluded from the counts when drawing voting districts. But ask them if we should count fetuses—absolutely!
2
I hope you are right, Ms. Greenhouse, but I had a much less optimistic reaction to the opinion when I read it. It can be understood as a suggestion to the administration that it cover its tracks better the next time. In other words, that it has to get better at lying.
I think we saw the same scenario with the travel ban. On the third version, the president just needed to limit the tweets and throw in a couple of non-Muslim countries to get it past the Court.
4
I have no doubt that Roberts will put corporations and donors over country.
Those are obviously his priorities.
That’s why he is there.
9
"And a year from now, we’ll know whether the court that could see through one Trump administration strategy is willing and able to do it a second time."
This is a naive statement. It would be both more accurate and more realistic to say it depends on what Roberts thinks, since the other 4 partisan justices (one of which was stolen by McConnell) were more than happy to buy the blatant lie that was being sold to them.
Remember, Roberts was happy to back up this lie as well, until a hard drive made the lie plain and made Roberts feel compelled to retreat in the face of nearly incontrovertible evidence.
Robert's is a conservative, but he's also very concerned with maintaining SCOTUS appearance of not being partisan.
With emphasis on the word "appearance."
13
The most alarming thing is that even with the evidence showing beyond doubt that the the Trump administration was blatantly lying to the Court, four so called “justices” voted for to just ignore that. It’s sad when the people who are supposed to represent law and justice are unwilling to call out corruption and dishonesty in order to promote their own political agenda.
22
To me, it sounded like Chief Justice Roberts was instructing the Trump team to come up with an excuse that he could better live with, rather than making it too obvious that the 5 conservative SCOTUS justices wanted - yet again - to ignore their duty to protect free and fair elections in order to help Republicans.
They established a similar m.o. when they allowed the Trump team to re-justify the Muslim Ban in a way that wasn’t so egregiously bigoted.
It appears that Chief Justice Roberts’s main tactic in protecting the court’s reputation isn’t to avoid partisanship, but to make it subtle enough that only a minority can see it. Another sign that the SCOTUS has become just another political branch of government.
11
In a future column I’d like Ms Greenhouse address how the 5 conservative SCOTUS justices lied about how they would judge cases brought before them in their Senate confirmation hearings. No legal precedents to cite just injustice posing as justice.
9
But it's not over yet! As of 7/3/19 I read reports that the administration want to find away around the block--legal or not. The show is not over yet.
3
It doesn't end.
Just because someone with apparent authority that works for Trump says something doesn't mean it's worth anything until Trump agrees.
Yeah, I would feel bad for the attorneys still working on this for the Trump administration. Perhaps they have pre-existing medical conditions and need the government healthcare plan and cannot afford to leave. Otherwise, not so much.
3
Justice Taney made many decisions, yet he is known to history for only one. Roberts’ legacy will be Citizens United, the Dred Scott of our day.
12
Further evidence that Roberts changed his position on the census issue at the last moment: Part V of Roberts' opinion, ,in which he speaks to the Trump administration's "contrivance," is unusually terse and informal with unusually few citations to precedent (2) in the 11 paragraphs of analysis. It reads like it was a rush job.
5
Excellent essay. As I am perhaps more cynical than Ms. Greenhouse, I have an opinion about the reasons for seemingly last-minute reversals by the Chief Justice.
"How Democracies Die," by Steven Levitsky and Daniel Ziblatt, details the striking similarities between the actions taken by Trump Republicans to win power at any cost (even the cost of our experiment in democracy) and the actions taken by autocratic rulers and parties who came to power in democratically established ways in what are now former democracies. In other words, it is clear how democracies die, and it is clear what is killing ours.
The architects of autocratic takeover may be venal and mendacious, but they are not unintelligent. Calculating just how far they can push certain policies without causing blowback, resistance and civil unrest (not to mention impeachment and indictment), they play a subtle and complicated chess game, sacrificing lesser gains to position themselves for future victories.
It seems clear that the powerful figures in this autocratic takeover project--the Chief Justice, the Senate Majority Leader and the president--co-ordinate in this intrigue. Whether they communicate directly about tactics and or not is beside the point, since they share the same strategy. But it is not unlikely that they do coordinate. Chief Justice John Roberts pulled back, Ms. Greenhouse, in likely coordination with Mr. Trump's and Mr. McConnell's efforts, knowing how they would respond.
6
It may not be nice to lie to the Supreme Court, but so long as they keep churning out 5-4 party line decisions with one justice serving as the swing vote simply to save the court from being deemed too hopelessly political, yes, lying to the Supreme Court is something the conservatives will always welcome and try to reward - to heck what the ruling means to our democracy.
7
why does it matter that you lie to the supreme Court when the court includes at least one who clearly and transparently lied to the Senate to secure his nomination? Lying is just another way of doing business.
Excellent analysis. However, I am not comfortable with allowing the courts to scour the motives of every executive policy decision. Should good policy be held hostage to less-than-pure motives? Should DACA have been invalidated because the Obama administration was trying to court Hispanic voters in the run-up to the 2012 election? Most policy is guided by multiple considerations. Federal judges do not possess magical powers to read the minds of policy makers and declare which ones may have been controlling. Nor do they have an exclusive knack for telling us when and which policy motives are pure, appropriate and/or untainted by partisan factors. And aren't policy makers allowed to change their minds with changing circumstances? Or do we want the courts to be able to step in and declare their original policy motives are immutable?
Let's set aside the particulars of this case. If John Roberts sincerely wants to keep our federal judiciary out of the partisan fray over the long run, he will be hesitant to open this Pandora's box of second-guessing the motives of every executive policy decision.
1
Had Roberts actually given a decision refusing the question in the Census I would be more confident. What he did is give Trump and Ross another chance to come up with a specious reason he could accept the question.
8
john roberts is thinking about his leagacy. he is not a strict ideologue so it is possible that he will adhere to precedent more so than his republican colleagues.
3
Ms Greenhouse, in future please be careful not to aid this President by giving his lawyers strategy tips! Right now, everything we do matters. The battles against him must be hard fought so that he gives up. Otherwise our democracy will be gone before we know it and he’ll be declaring himself President for life.
6
What makes you think this is over? There is no reason to think that Trump won’t go ahead and do it anyway. Dictatorship gets closer by the day, fueled and enabled by Mitch McConnell, representing a state that gets 20% of its budget from the federal government.
19
Greenhouse is great on this subject. Unfortunately the Trump administration crawfishes. It now has plans to add the offending question to the census.
4
The issue iof the census question is only dead when those chosen to govern respect the rule of law. As the latest headlines indicate, the Justice Department just reversed the decision not to remove the question on the census. Ms Greenhouse, what you just experienced is the authoritarian tendencies of Trump outpacing both your deep understanding of how the system is suppose to work and the need of the media to publish almost instant analysis. We are indeed living in interesting times. After this blantant disregard for the power of the Supreme Court, I think Ms. Greenhouse would concur.
8
Maybe the Supreme Court is not a partisan institution and never was, but the news media have no obligation to be non-partisan and are not above accusing the Court of partisanship whenever they think it suits them or their readers.
1
Lets us assume that the 2020 election leaves us with a Democratic president, other than Biden and a House and Senate in the control of the Democrats. What happens next to save our democracy?
First, on day one, the filibuster is gone, kaput. Next we enact the Uniform Federal Elections Act within days.
This act shall provide that in every federal election for the House there shall be as many election districts as there are congressional seats and each district shall contain as many people as every other so that within plus or minus one percent, each district shall contain as many registered voters as every other; the object being that each election district shall reflect the purpose of this Act, which is that every vote counts the same as every other vote and each Congress person is elected by the same, or as close to as same number of votes to reach the ideal object and ideal of one person, one vote.
This may not be constitutional, as with this Court it is politics uber alis, until a later Supreme Court reverses this new travesty, but it will be federal statuary law.
3
What process, if any, is there for removing Supreme Court justices?
1
@Andy B: They can be impeached and convicted by Congress:
https://en.wikipedia.org/wiki/Supreme_Court_of_the_United_States#Tenure
Yeah, good luck with that while McConnell is Majority Dictator.
I still think that Chief Justice Roberts decided to throw the voting majority in this country a bone (the citizenship question), and, while we were gnawing on the bone, he hit us over the head with a hammer (gerrymandering). Trump's 35% base is understandably upset about the "bone," but when they reflect on Citizens United, Shelby County, and the gerrymandering case, they will have to admit that three out of four isn't bad, even for a minority of our citizens. I do not share Ms. Greenhouse's willingness to be charitable: I believe that Roberts consciously orchestrated the two decisions and consciously left the door ajar on the citizenship question. As of this afternoon, the Trump administration is already trying to walk through that door.
17
@jhand
Totally agree. Remember the ACA case. That was another bone he threw so he could claim the high ground but he knew the business community wanted it to stay in place so he knew he was safe and would look like the savior. Some of us were never fooled on that.
1
What the Supreme Court rules as against Mr Trump is irrelevant because he is above the law. He will never abide by any court ruling so long as he holds office. The Base he panders to will keep him in place because all they care about is sticking to the Liberals. Unless the Democratic Party is able to actually recapture the Presidency and the Senate, we are resigned to an ever growing criminal state. He has shown he will do what it takes to hold that office. To fail for him means ruin.
14
Well, there is always the alternative of a civil war.
Unfortunately, the citizenship question is not dead and the "cynics" may soon be called "realists". Click on the Times article link opposite this one and you find the following:
"WASHINGTON — A day after pledging that the 2020 census would not ask respondents about their citizenship, the Justice Department reversed course on Wednesday and said it was hunting for a way to restore the question on orders from President Trump."
If the census questionnaires are printed (oh, sorry about that) with that question, so the only choice is to use them or delay the census, which do you think the 5 member Supreme Court majority will choose? And if the White House provides a new rational, as the decision said may merit reconsideration, will those esteemed and independent 5 justices not find a rationale as Solomon-like as the one behind Citizens United to justify the use of the citizenship question?
3
@Michael K.
"... to restore the question on orders from President Trump."
Is it possible for the Supreme Court (or the appropriate law-enforcement official) to charge the President with Contempt of Court?
I ask because this is what this "King" is doing, and I don't know the answer.
I fear that the only appropriate law-enforcement official is AG Barr, and we all know who he sleeps with.
Maybe the only appropriate response is for all truthful Americans to boycott the census? The missing numbers would be sufficient to render it invalid.
3
@Kenneth Brady
"Maybe the only appropriate response is for all truthful Americans to boycott the census? The missing numbers would be sufficient to render it invalid."
No, what would happen is that the census would report that now red state population vastly, vastly exceeds blue state population.
but that is probably what the Republicans who want to sabotage the census want us to. The answer is impeachment for failing to faithfully execute the laws of the USA, full stop.
I don't understand, actually. You quote the admin as saying they're changing discretionary enforcement. How is that arguing with the law?
Firstly, the radical rightwing Supreme Court did not put an end to the citizenship question but rather told the Trump Administration to not lie so obviously.
Second, Trump has realized that he doesn’t need the citizenship question to play footsy with the 2020 Census – simply not promoting it in those districts the Republicans want to undercount and pushing it in the districts the Republicans want to be over represented in Congress and federal dollars will accomplish the same objective.
I feel sorry to any of the SCOTUS experts who think Roberts cares about Supreme Court’s ability to uphold the Rule of Law without the taint of being lethally partisan. Too many cases now-Citizens United, Bush v Gore, Bush v Gore, gerrymandering- show otherwise.
As for lying to the court? There is a reason Andrew Jackson is Trump's favorite president: After SCOTUS declared the Indian Removal Act unconstitutional, Jackson said, "John Marshall has made his decision; now let him enforce it”.
There clearly are no consequences for lying. That was the case in Padilla v US when Justice Ruth Bader Ginsberg postulated “Suppose the Executive says 'mild torture, we think, will help get this information?'"
Solicitor General Paul Clement replied "Well, our executive doesn't."
“It turns out, of course, that the Executive cannot even be trusted to give a truthful answer to the Supreme Court. In fact, our executive does use torture,” Edward Lazarus wrote in findlaw.com.
Trump sees there are no consequences.
9
How sad that review courts, up to and including the Supreme Court, don't prosecute perjury when it is clearly an element in cases that come before them. You know, "the truth, the whole truth, and nothing but the truth."
7
Even with his decision on the census issue, John Roberts is protecting Donald Trump and the Republican Party. Unlike Donald Trump, John Roberts has understood that a decision based on such obvious lies may strip the Court of any legitimacy it has left in the eyes of a large part of the U.S. population. If Democrats come to power in 2020, such a decision would greatly increase the likelihood of a complete overhaul of the Supreme Court. Now, many Democrats may feel that such an overhaul reeks of court packing and other dirty games; if the Court is seen as completely illegitimate, there will be no reason to hold back.
Of course, the Republican court (yes, John Roberts, sadly that is what you have become) can only serve the rest of the Republican party if it remains powerful. So, in the long run, John Roberts' instinct for self-preservation also serves the Republican party.
The question remains whether the gerrymandering case, and the invitation to engage in even more egregious gerrymandering that the majority decision made, is not sufficient to destroy the Court's reputation. The Court has come back from some dreadful decisions in the past and lived to become a highly respected institution - but Roberts has been playing with fire and his house is now burning. It may be saved once again, but not if the Republican party hacks calling themselves "Justices" keep throwing fuel rather than water on the flames.
9
Ms Greenhouse, about Chief Justice saving the Republican party as you point out, I’m curious about his decision on the census question. If he could join an opinion that finds gerrymandering by his party, since that is the subject of the appeal, outside the reach of the Supreme Court, it’s hard for me to think the second decision wasn’t difficult for him. The fear inspired by the very discussion of a citizenship question is likely to inhibit undocumented individuals from participating, giving Republicans the result they transparently sought in the first place.
I guess you can say I’m cynical.
1
@MG
Correction—I meant to say “it’s hard for me to think the second decision was difficult for him.”
Linda Greenhouse is a national treasure! Thank you for this.
6
Trump's appointees to the Court have proved loyal to his reign -- apart from Justice Kavanaugh's census decision. The Court is only one vacancy away from its domination by Trump -- unless Democrats win control of the Senate by then.
7
Interesting ideas in this essay.
I keep thinking about Hugo Black. He was a member of the KKK as a young man, yet was the best friend civil rights ever had on the Bench. I believe what they said of him was "when he was young he put on a white robe and scared the black folks and when he was old, he put on a black robe and scared the white folks"
People change
183
Not anymore. Only exception I’ve seen was Justice Souter. No other mistakes from the Republicans.
13
@sjs: Especially in Roberts' case, where he found out he's defending a lie, which surely he is smart enough to know in the first place. Roberts is a partisan, but he doesn't want to be a humiliated one.
13
@sjs Hugo Black was the best friend that civil rights ever had on the bench? That is an absurd overstatement and an insult to such true champions of civil rights as Thurgood Marshall, William Brennan and Earl Warren.
You are right that Black became friendlier to civil rights than when he was a robe-and-hood-wearing member of the KKK. But I think you are setting the bar a little too low there.
Let's look at a couple of the decisions of this "best friend" of civil rights. He wrote the majority opinion in Korematsu, approving the internment of Japanese-Americans during WWII -- a decision that ranks with Dred Scott and Plessy v. Ferguson as one of the worst decisions in Supreme Court history. He wrote the majority opinion in Adderly v. Florida, a 1966 case affirming the convictions of black student demonstrators from Florida A&M, who had gathered in front of the jail to protest the arrests of fellow students in an anti-segregation rally. Black's 5-4 opinion found no constitutional violation in the convictions of the demonstrators for trespassing with "malicious and mischievous intent." He dissented from the 1969 decision in Tinker v. Des Moines Independent School District, which enjoined the school from suspending students who silently wore black armbands to classes to protest the Vietnam War. Although the school agreed that the students had not disrupted any teaching, Black was upset that the armbands had caused "comments" and the "poking of fun" by other students.
11
Definitely a big win for Democrats, illegal immigrants and sanctuary cities. Now that states can be rewarded with Federal dollars and House seats for fostering illegal immigration, look for the border emergency to get even worse. Only Democrats could use the courts to validate lawlessness. John Roberts is the left's new hero. He's jealous of that RBG love. Maybe this will help get his biopic/documentary made.
Let’s hope so!
Your comment is breathtaking.
Chief Justice John Roberts styles himself a judicial umpire, just callin' balls and strikes like he sees them.
I've come to see him as more the performer of a partisan striptease. He flashes a glimpse of the naked partisan hack beneath, with decisions like Citizens United, Shelby County v. Holder, and now the gerrymandering decision.
But then he covers up real quick with some balancing decisions like Obergefell, Obamacare, and the census.
Roberts wants to get away with as much as he can without the "Roberts Court" becoming synonymous with Republican cheating and white minority rule.
5
You are too optimistic Linda. The Court is now an arm of the R party. It will bend over backwards to give Rs what they want. The gerrymandering decision is egregious, but Robert deems that there is sufficient cover, so vote rigging is legal. The census Q was so brazenly partisan that Roberts blinked. Even then he left the door open. We are no longer a nation of laws.
13
I’m a proud cynic, it works for me. Roberts and his MALE breathers are lying low, as much as possible. HE knows that his name is on this Court. And there’s a rather important National Election upcoming. Get used to the feinting and dodging, until AFTER 2020. Just saying.
3
@Phyliss Dalmatian
Male brethren. But actually, breathers works just as well.
1
For the census case Roberts finally wised up to Trump and his band of liars. Old notions of deference to the executive on certain matters should undergo a minimal test of veracity.This should have been the standard in the Muslim ban case. On its face it was an exercise of Art II powers that should receive wide latitude. However, the nation knows that Trump clearly wanted an unconstitutional religious ban that he couched under national security. Liar, liar pants on fire should be a new US Supreme Court standard. Maybe one of the robed ones will figure out the proper Latin for this. After all the Supreme Court cannot ignore the fact that a pathological liar occupies the WH.
4
Wilbur Ross can't tell the truth. Who knew?
6
We have Supreme Court justices who LIE to themselves! Current court is a rotten mess.
6
It’s certainly not the first time he’s lied, or directed others to lie for him. And it surely will not be the last. Besides, if Il Duce doesn’t like what the Supreme Court has to say, he’ll just ignore it. Just more ‘fake news,’ am I right?
2
"claims of partisan gerrymandering, a practice in which both political parties indulge but that Republicans have perfected to a high art,"
Oh puleeze.......... See Maryland's 3rd Congressional District which did nothing more than disenfranchise conservatives and independents in central Maryland. Why? Son-o'-Sarbanes (Congressman John Sarbanes; D-3rd) needed that Metro D.C. liberal cash for his campaigns. An ergot poisoned Picasso couldn't have come up with those boundaries.
(https://thedailyrecord.com/files/2015/08/MD-third-congressional-district-copy-600s.png)
In normal times, Wilbur Ross would face a perjury charge.
8
What goes around comes around. Old white men will die off (Supreme Court decisions can’t fix that for them) and the Democrats will gerrymander Republicans our of existence.
1
Trump in a zombie tweet just won't give this one up. He thinks he can rant, rave and wave some imperial scepter and make this citizenship question happen. This president is deranged, and especially so when he is thwarted. We are saddled with an utterly irrational megalomaniac in the White House. The only saving grace is that he is also a coward, backing down when confronted by a brick wall. We need more of those walls if we are to save our nation from this crazy person.
8
Oh yeah.
So I lied to the Supreme Court.
So what.
So what are you gonna do about it?
Yeah, that's what I thought.
You ain't gonna do nuthin".
5
The liars on the SCOTUS don't want to be told lies? Now that's rich.
5
Late breaking news - Apparently the administration did not give up the fight.
https://www.cnn.com/2019/07/03/politics/census-question-trump-tweet/index.html
Would someone please remind me which way is up? I seem to have lost my way.
I do not know how much longer the USA can cope with this chaos without having a total meltdown. Election day 2020 is looming larger and larger as a day that will change the future of the world. Think that sounds hyperbolic? Think back 3 years ago to what things were like, what the news headlines were. Remember what stability was like? Remember when the executive branch was boring? Seems like ancient history doesn't it.
302
@arusso -- A basic truth about the right wing: they never give up. They may go underground for a while, but they never give up.
43
@arusso Is this not an object lesson, perhaps, in writing anything definitive in the era of the Don? It would be mildly amusing were it not so perilous for the Republic.
19
@arusso
It appears that Trump (and the decision in this case was unarguably his) has decided that either he gets what he wants of he'll rip up the process and trash the election. He either gets this kind of smash and grab strategy from Kris Kobach or it's his own idea. Either way, it's not something Congress can allow. We are another step closer to impeachment.
21
Linda Greenhouse is really smart.
3
I don't share the optimism. In the same time period, the conservative wing of the court has held that State redistrictings that make a mockery of one person, one vote are not subject to review and that the Latin cross is not a religious symbol. No attention paid to that case. Read RBG dissent and cry.
The occasional decision that the WH and GOP shouldn't out and out lie or that it really is unconstitutional to exclude jurors based on their race in 2019 aren't much to cheer about.
Could it be worse? I suppose so.
223
@KKW
I like your observation that the cross is only a Latin cross, not a Christian cross; i.e., even more sectarian than it might appear to this country.
11
@KKW - I share your pessimism. After Citizens United decreed one dollar one vote/corporations are people too, and rolling back the Civil Rights Voting Act, sadly it comes as no surprise that Roberts would give gerrymandering the green light.
The census question, in light of new information revealing the true motive to be giving further advantage to republicans, again redrawing voter districts, would have been too brazen for any plausible reason other than partisan advantage, so he dodged.
Roberts can try to hide his red britches under his black robe, but I'm not buying it. Republicans are breaking rules with wild abandon - the ruling on gerrymandering feels like the last straw, the one that will break this thing called democracy.
38
@KKW in 1973, in Abidjan, C'ote d'Ivoire, Africa, at the World Peace Through Law Conference, I asked retired Chief Justice Earl Warren which was the most important case that his Court decided. Without hesitation, he said one-man, one vote cases. What authority do those cases have now?
5
If Republicans are prevented from asking the citizenship question, then they are likely to try to use the next best estimate of non-citizens counted to apply to re-districting. It is a well established principle of equity that when someone prevents better evidence, then that party cannot be heard to argue that the next best evidence isn't as good.
One use of this census question was "providing data for use if the Supreme Court gives the green light to counting only eligible voters in legislative redistricting. Conservative groups are poised to send such a case to the Supreme Court in the near future."
The other use was to suppress the response rate, but let's focus here on the actual information. What could Republicans do with the next best information?
They could get remarkably close to the same result, if the Court rules in their favor on the coming case.
Would the Court allow that? That really means, How much would Roberts allow. He wrote that decision that said the question could be correct if it had been asked for the right reasons. He's on the edge.
We are far from out of the woods on this.
3
One out of two decisions is still crippling for democracy.
Yes, Roberts showed some conscience on the census case by rejecting the Trump Administration's partisan lies and further attempts at Republican hijacking.
But what about that awful gerrymandering decision ?
In Rucho v. Common Cause, the Court ruled that while partisan gerrymandering may be "incompatible with democratic principles", the federal courts cannot review such allegations, as they present nonjusticiable political questions outside the remit of these courts.
The 5-4 Republican decision left in place North Carolina's hijacked, gerrymandered congressional districts, which favor Republicans nationwide.
The conservative Supreme Court justices completely disregarded the undemocratic intent and result that a lower federal court recognized as unconstitutional when North Carolina Rep. David Lewis, a Harnett County Republican, announced that the maps were drawn to give Republicans a large majority.
Lewis made this tyrannical gerrymandering pledge:
“I propose that we draw the maps to give a partisan advantage to 10 Republicans and three Democrats because I do not believe it’s possible to draw a map with eleven Republicans and two Democrats.”
The lower federal court judges were unanimous that North Carolina lawmakers under Republican leadership violated the U.S. Constitution’s equal-protection clause when they drew maps explicitly to favor their party.
This Supreme Court has half a spine at best.
Disgraceful.
686
@Socrates
I question the intellectual integrity of the GOP justices (lets call them what they are because impartial they are not). I have no law training but I am fairly intelligent and decisions like this gerrymandering case seem like an abdication of their responsibility based on a cheap technicality. They lack the courage to take a stand for what, to me, is obvious justice.
"Oh, that isn't our jurisdiction. Not our place to say." The cowardice, partisanship, and malice are obvious. These are very bright people, but their intentions are highly suspect.
105
@SocratesOne opinion I read had it that Rep. Lewis said what he did to cover that it was really a race based decision.
14
@Socrates
As Linda Greenhouse describes the "thinking" of Thomas and Kavanaugh, they are simply lying and denying what was revealed by files found after the pollster died.
In fact, Roberts is a liar and has contrived a reasoning in order to set up the ruling he wanted.
The GOP justices have no integrity.
63
Fascinating article, particularly the reasoning on DACA. I can see how Donald Trump might be embarrassed in an election year to have gone back on his "word".
Of course, that's never mattered to him before. It's an arcane argument that likely the president wouldn't understand, but he probably thinks that it passed muster with Barr, that's enough for him.
I'm not sure if Roberts (or the Trump appointed justices) are irked by the president acting as if he owns the court. Or could they be flattered, knowing that neither of them really belong there, For such for the McConnell-stolen seat and Kavanaugh for definitely nonjudicial temperament.
3
The cynical take is the correct one. These people spend most their day figuring out how they can maintain power despite increasing ethnic diversity. Redistricting is a case in point -- the Republicans spent years developing and implementing their current redistricting strategy. They have made similar efforts in trying to corrupt the appointment of judges in their favor. The depth of right-wing scheming is far beyond what most people recognize.
7
That DACA kids often succeed admirably can frustrate certain US citizens of every color and creed... those US citizens who reside in areas where our captains of industry have removed jobs and sent them to China, Mexico, Thailand, Bangladesh, etc.
A Rhodes scholarship for young US citizens growing up in those places seems unattainable... poor schools, etc... while the opportunities that an undocumented kid in New York City obtains can just infuriate that US citizen growing up in our rust belt.
This situation is a devious implementation of Jay Gould's quip: "I can hire half of the working class to kill the other half."
1
I don't care if Roberts tries to make the court seem anything other than partisan. 4 of the 5 conservative members were appointed by presidents that were not legitimately elected - George W. Bush and Trump. The fifth member is one of the most debased people in the court's sordid history. Clarence Thomas.
Let us hear no more of this alleged Supreme Court's legitimacy. It has none.
13
You’re wrong. The five conservatives know and knew he was lying, they’d have still allowed it if new evidence hadn’t showed up and tied their hands. He already lied to them about the motive of the Muslim ban, they knew he was lying, they accepted it. So, you’re wrong!! The court is just a political rubber stamp for the right or left wing. It simply decides whatever it thinks the country ought to look like, then, fabricates arguments around its preconceived views. It has almost nothing to do with the constitution.
3
This isn't over. They'll print an addendum page containing this one question at the very last minute.
"The plan was to create and entrench Republican majorities in state legislatures by providing data for use if the Supreme Court gives the green light to counting only eligible voters in legislative redistricting."
The authors of the Constitution certainly did not intend legislative proportions to count only eligible voters. In fact they explicitly included 3 out of every 5 slaves in the count, without them having the vote. (Article 1, Section 2, Clause 3)
2
What the country needs is for one more Democrat Justice, most likely to be Bader-Ginsgurg, step down from the court & let President Trump nominate a 3rd judge to be confirmed for the SC.
As Trump only has 16 months of his first term remaining it is unlikely it will happen until during his second term (fingers crossed).
Amy Coney-Barret would be my choice. To start with it would rule out the possibility of a Kavanaugh repeat, plus she is strictly conservative, pro-life, & she has a strong belief in the Constitution.
Although it now appears the forms will be printed without the question, the President now maintains the question will be a part of the census.
Until the forms are printed and proofed I will not believe the question will not be there.
2
I'm not as hopeful as Ms. Greenhouse. Roberts doing the right thing once a year just doesn't fill me with hope. Plus trump is going to fight the opinion. If he puts it on the form, what will the court do? trump thinks he's a king. How often will Roberts dare to disagree with him?
6
Linda Greenhouse is a gift to America that keeps on giving.
I fear, however, she errs in believing that the Supreme Court will be a regular obstacle to Trump's autocratric ways. The ideology of the Roberts Five when it comes to executive power and Trumpian assertions of that power are reasons to fear the next year or the next five years.
Tomorrow's authoritarian spectacle should give us all reason to worry. Let's see who from the Roberts Five attends the spectacle.
7
The side battling against the Administration lied also.
They said that including the citizenship question on the census would hurt political power in California.
It would do no such thing.
Not including the citizenship boosts political power in Washington, which is oppressive to the rest of American and totally unfair to the flyover states like mine who..in spite of increased population...is about to lose another House seat..to California.
How is that fair, just, or equitable?
@Erica Smythe And you know this how?
3
Maybe I missed something, but if the census question about citizenship were to be implemented, what would stop people from lying? Previously, there hasn’t been much reason for people to lie to census takers — their answers would not come back to haunt them. But with a citizenship question that might relate to representation in the census, people might decide that it’s to their benefit to lie about their citizenship. If I was a non-citizen in a city friendly to non-citizens, I might think that claiming citizenship was a good idea — so that my city would benefit from an officially larger population. Conversely, citizens who feel out of place in their city’s political climate might claim non-citizenship in order to lessen the national impact of their neighbors. How could this be stopped? Would census-takers require proof of someone’s answer? What if I misplaced my birth certificate? The easiest way to keep people honest would be to have national ID cards for everyone. Maybe the real reason behind the push for the citizenship question is not immigration, but control!
1
I suspect this decision will lead to many cases challenging the motives of a future administration. Letting judges poke through papers trying to figure out what members of the executive branch were thinking when they made a decision is a recipe for more gridlock.
Dear Mme. President in 2020,
If, as one might infer from data and recent health issues, SCOTUS needs a replacement for a member soon, please consider Linda whose brilliant legal mind is matched by her political astuteness and heart-felt understanding of 2 groups, the Founders who crafted the crafty Constitution and the current inhabitants of the nation that lives under its rule and rulings. One may easily surmise neither group is understood by several recent appointees, so there is urgency in restoring SCOTUS's chief hacks with people who more closely reconciles our Founders' goals and words with the march of life in the 21st century. Linda is not the only potential healing Justice, just the first who comes to mind after today's fine column. As the best and brightest sometimes say, "You go, girl".
4
Bless Linda Greenhouse! The best NY Times Op-Ed writer once again sheds light into the darkest recesses of the Supreme Court, allowing us lesser-mortals into some understanding of how decisions are reached. I was struck in reading this article how little a lifetime appointment seems to matter to myopic justices like Alito, Thomas, Gorsuch and Kavanaugh who failed to consider what we all learned about this case in their dissents. These men are so preoccupied with embellishing their POLITICAL credentials that they are willing to sell their juridical souls in the process. What gene is lacking in these men's characters that allow them to avoid obvious Constitutional problems in reaching political conclusions? They are all appointed for life. Is it really possible that these ill-designing justices really believe in the Constitutional foundations for their opinions? No longer constrained by worry about passing muster to get appointed to this Court, they are supposed to be free to focus squarely on the JUSTICE of their opinions, hence their title of Mr. or Madame Justice. The LACK of justice displayed by Thomas, Alito and Gorsuch (for sure) and Kavanaugh (tbd) are beyond doubt. The Chief IS concerned about his historical legacy and has shown this on several important cases, Obamacare being preeminent. But what REALLY keeps the conservatives so unjust in their decisions? Ms. Greenhouse, can you shed some light on this too because we're all grateful for your "opinions".
8
fabulous analysis. One wonders how it is, however, that Robert thought it was perfectly reasonable for the administration to override the professional statisticians in the Census Bureau.
8
Suspiciously, I admit, I wonder: was the anti-citizenship question win just a bone thrown to the citizenry of the country who might actively protest in order to balance the much more egregious pro-gerrymandering decision? Perhaps this is manipulative thinking by Roberts to mask the destruction of our constitution that the conservative judges seem bent on achieving.
11
One other element that Ms. Greenhouse does not bring to bear in his close reading of the shifts in the various opinions about the census question: Chief Justice Roberts, years after the Shelby County vs. Holder decision that allowed states to gut the protections of the Voters Rights Act, must have felt some pang of discomfort for that egregious decision when he faced Ross arguing that the transparently false reasons for including the citizenship question were meant to buttress the Voters Rights Act. Perhaps such chtuzpah was too much even for Roberts to tolerate.
7
2 quotes stand out for me as relevant to assessing Roberts on the 2 decisions.
"If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.”
I prefer that one from Roberts decision on the census as a apt response to his dismal reasoning for the gerrymandering decision.
And this one from Salon's Deputy Political Editor Sophia Tesfaye,
"John Roberts is trying to wreck democracy-but Trump's incompetence keeps getting in the way."
10
Thanks for that great analysis of these two important cases.
2
Trump just said he will have the question on the census. He literally doesn't care what SCOTUS said.
4
Well, imagine that. Another liberal has figured out that current configuration of the Supreme Court hasn’t resulted in The End of the World. And to think we’ve also survived the cratering stock market, nuclear war with North Korea, worldwide Russian dominance and all 15 impeachments of the President since November, 2016. We just might make it to 2020, after all.
@John D
We will make to 2020 but with a lot more debt.
The Ryan / McConnell / Trump tax cut has increased the deficit from $600 Billion to $1 Trillion.
The projected ten year increase in the debt is $12 Trillion which is $80,000 per taxpayer.
To be paid for by us, our children and grandchildren.
Job creation 2018: 2.6 Million
Job creation 2015: 2.7 Million
Job creation 2014: 3.0 Million
This is after 8 years of Republicans relentlessly railing against the debt when it was Obama.
Every Republican senator voted for it. Not one Democratic senator voted for it.
6
They're lying. Why should the Court believe them about anything.
The court is going to enforce it's rulings, how? If Trump decides to ignore the court over this matter, which Republicans dearly want, then who will stop him? The Congress? The Department of Justice? Fat chance. He will in one stroke end not just liberal democratic government but an independent judicial system, too. McConnell and Graham will not stop him.
4
If Trump forces the question on the census we can hope that the Generals will stage a coup.
1
Are you so sure the Court's not just doing a MuslimBan? Remember how the Court pitched a brush-back twice, then happily accepted the administration's perjury the third time, allowing the "temporary" ban (lasting forever) with an available waiver (which is almost never approved)?
There's still time to reinforce gerrymandering by rehearing the case before October - the real deadline.
1
Maybe having the lawyers put Ross on the stand and have him lie under oath to the Supreme Court would really highlight the motivation of this Administration.
4
"The decision in the census case suggests President Trump can no longer take the court for granted."
That's being entirely too optimistic. All it would take is for Roberts to have a stroke and he gets replaced by a Kavanaugh replicant from The Federalist Society.
At that point, the court becomes the willing tool of a popularly elected kleptocrat who will be able to, in fact, take the court for granted as it takes us for a ride.
7
Is Robert's vote meaningful?
Will it stop Trump from doing what he if he is immuned from prosecution?
Roberts is firing blanks and he knows it.
Does this decision matter?
The Trump administration will print the census forms with the citizenship question and mail them. What is going to happen? That is Trump's strategy. He does not care if this is dishonest or ignores a court order. The Justice Department is not going to prosecute.
Consider it done.
I don't understand the argument being made by the statement "But even if such a ploy had succeeded, its very success would have proved Secretary Ross to have been a liar all along."
Everyone paying attentions already know Ross lies. He lied several times on his financial holdings statement and he lied when he said he would divest his interest in specific corporations. Ross fears not. He has a pardon in his back pocket.
6
I disagree with your headline. It should read: "Republicans Can Lie To The Supreme Court All They Want. The Court Won't Care 9 Out Of Ten Times, And Four 'Justices' Will Not Care 10 Out Of 10 Times."
20
Roberts’ legacy is sealed with only two cases : Gerrymandering and Citizens United
Is anyone impressed? I think not.
12
The founding fathers are rolling collectively in their graves
4
The gerrymandering case is an abomination. The appropriate census decision in the census case does not change that. The foundations of America have become Rome, and it is burning.
3
Shouldn't Wilbur Ross at least be under investigation for committing perjury? He obviously lied to the Supreme Court about the reason why the Trump government wanted the citizenship question added to the 2000 census.
8
I have started reading this article, but it is the middle of the day...so I will just throw this question out there...why is it such a bad thing to have a citizenship question? I truly do not understand and would appreciate any explanation for the opposition to such a question.
1
@Orin Ryssman
Because it was discovered that the administration's real reason for wanting the question was to aid the Republican Party and non-Hispanic citizens. If they hadn't lied about it, Roberts would apparently have agreed to allow the question.
2
@Orin Ryssman
You have a point and I've read that some European countries use a citizenship question when they take a census. How many answer truthfully is something else again, but knowing how many citizens you have would help in estimating what your financial/polltical obligations might be.
1
@Orin Ryssman Including a citizenship question reasonably anticipates that some of the population will answer “Yes” and some “No.” But reality and some research suggest a large fraction of the “No” responders would instead hide from pollsters and not respond at all.
Under the Constitution and many existing laws, citizenship is not a requirement for apportioning representation or distribution of funds. An inaccurate census that has failed to find and count many non-citizens cannot fairly serve its purpose.
2
"And a year from now, we’ll know whether the court that could see through one Trump administration strategy is willing and able to do it a second time."
Don't bet on it.
This census ruling was a fantastic way for Roberts to "throw the libs a bone" without really having it do much damage, if any to the overall conservative cause. It's also a fabulous smoke screen that enables Roberts to stick to his fatuous claim that the court is "non political".
Yeah, sure it's not.
They already snagged the big prize with the court giving the green light to gerrymandering. This census issue was nothing more than the cherry on top of an already gooey, oozing sundae.
No doubt there was some back channel chatter from the court to the White House that made that very point, which is probably why they surprisingly decided to drop the matter.
1
Linda Greenhouse has "been reading Supreme Court decisions for a very long time" and I've been reading Supreme Court analysis for at least as long. She is consistently one of the best analysts of the courts decisions and their background. I hope Linda continues to be the Times' primary Supreme Court commentator for a long time to come. We need her insights.
23
@John Gunther I loved listening to her on the PBS Newshour and WWIR.
It's never nice to lie to anybody, let alone to the Supreme Court, as grifter Ross, and liar Trump, have done. Fortunately, the Census question was rejected as being purely partisan (read Republican), so a soon-to-be minority can claim majority by excluding the opposition from the voting booth, by not allocating the funds proportionately, for the public services needed in a working democracy. Insofar DACA is concerned, Chief Roberts knew these youngsters were (are) at risk of being deported by Trump's cruelty, and the prompting of republicans nervous about DACA's future allegiance, voting for democrats. One more thing, and it relates to you (LG): any sentient being appreciating justice as essential for our freedoms, ought to be thankful for these updates, so not to take for granted our human feebleness in knowing right from wrong...when one's loyalty depends on having beeen nominated to the Court. Whosoever thinks is free of conflicts of interest, or at least not conflicted by circumstances and the prodding of his fellow beings, think again...as we all may become corrupt...if the price is fight.
Thanks for reminding us of the importance of integrity with courts. In a matter of days or weeks we should learn if the FBI lied to FISA.
1
And what happens if the FBI did not lie?
Does Trump and Graham et al claim fake news? Its a rigged investigation. The deep state at work.
Nothing changes Trump.
Lie.
Deny.
Change positions and deny you changed.
Blame the press.
Obama did it too.
And if all else fails go back to locking up Hillary and claiming the Nobel Peace Prize for getting North Korea to surrender.
Claim the prize for Economics for creating the best economy ever and using tariffs to bring China to their knees.
Roberts's opinion was not much more than a plaintive wail to urge all future administrations to get get better at lying.
9
Is there hope after all for Democracy?
2
@Siegfried -- Not here. We're doomed. Maybe in another country but the US is irreparably broken thanks to republicans' decades-long efforts to undermine basic tenets of democracy.
4
07.03.10 11:06, Trump Tweets:
“The News Reports about the Department of Commerce dropping its quest to put the Citizenship Question on the Census is incorrect or, to state it differently, FAKE!
We are absolutely moving forward, as we must, because of the importance of the answer to this question”
WWJD? That we know,
the bigger question is
WWMD? if Trump ignores the SCOTUS decision?
Lying to the SC doesn't seem to bother 4 of the justices.
6
Maybe that is because one is crazy and 3 believe lying is okay to get what you want. They all did in their SC confirmation hearings.
By lying, would that include claiming to the public and the courts that the Obamacare individual mandate was not a tax?
2
This seems significant because it is a very visible and straightforward issue entirely of the president's making, and the rebuke came from a conservative Supreme Court.
There are excuses galore one can make about botching a hurricane response (even if it was botched out of willful neglect) or the sadistic and scarring treatment of migrant children. While the excuses offered for those messes might be phony or wildly exaggerated, it can be difficult to convince the public that they are or that someone else would have done significantly better. One can, for example, claim that underlings were incompetent or the sudden scale of a crisis simply overwhelmed systems that have been in place for many years. These statements may be false, but they are hard to disprove in a timely manner, at least without a lot of help from whistleblowers.
In sharp contrast, everyone knows the census is mandated by the Constitution and the most likely reasons for a politician wanting to change it are not honorable. Everyone also knows that no one would have said a word if the census was simply left as it was in 2010. Not only was there an attempt to "gerrymander" the census, but blatant lies were told to a newly conservative Supreme Court to double down on that attempt.
No one is impressed by someone who, either literally or metaphorically, shows up at a key moment just to toss a roll of paper towels. The Supreme Court has a loud and credible enough voice to share their displeasure and be heard.
1
What I believe is that there were two big close decisions to be made in one day and that if he had gone with the conservatives on both of them it would have looked like a political decision and reduced the nation's opinion of the Supreme Court, so he chose the one that did the least damage to the Republican Party's laundry list of how to steal elections, while maintaining gerrymandering, which the Party knows works. He also may be afraid that if a Democrat wins the White House it would have given that President even more good reason to add justices, eliminate the conservative majority and permanently take the selection of a justice out of the political battle, since one judge probably wouldn't be that crucial at any one time. I hate to be cynical about this, but the Chief Justice doesn't want to appear to be a political hack (see Brett Kavanaugh's work for the party) apparently because we may be heading to a time when the Supreme Court's decisions are either ignored or just considered along with the other opinions of the lower courts. After rulings on gun control, election spending, Bush v. Gore and the other un-justices, it's headed that way anyway.
4
I’m more inclined to believe that Roberts, not wanting to go down in history as so obviously a sycophant, just can’t resist providing the administration another bite of the apple. Interesting decision. I wish the court had done the same in Bush v. Gore.
Sorry, but as long as he can take at least four of the Justices for granted, he effectively can takr the Court for granted.
4
I wish I shared your generous view of this court as not being a branch of the republican party. Roberts tried to demonstrate how "balanced" the court his by deciding the census issue to Dems (well actually to the good of the country, but everything is hyperpartisan now) while making the far more harmful, and morally bankrupt, decision about gerrymandering to the republicans. It's a farce, as is the entire legal pseudo-philosophy of originalism, which presupposes the ability to read people's minds. Either way, the court is firmly in Trump's control.
8
The Roberts court, the one without Merrick Garland. The Citizen’s United court. The one with Kavanaugh...
I’m way more cynical than Linda Greenhouse. I’m thinking that somebody found a different, Supreme Court proof, way to disenfranchise voters, so Roberts did this just for the optics.
We’ll see how consistent he is when the DACA case comes up.
5
When did the Administrative Procedures Act
become part of the Constitution ?
Why are these claims that non-citizens will not fill
out the Census forms given standing at the Court ?
That you are not a documented alien is your brought
about by your own doing, why should the nation have
to change to meet your presumed demands ?
I am in Favor of letting the people under DACA
to remain and become citizens if they so wish.
I am in favor of a vast reconstruction of the Immigration
System.
Yet, is becoming clearer and clearer that it really
does not make any difference to the liberals whether
you are a citizen or not.
I will advise my grandchildren to never fight in
any war America ask you to fight in, as being a citizen
means nothing anymore.
As for being honest with the Supreme Court.
Well every defendant whose case was not overturned
by the Supreme Court either "fibbed" somewhere
in their testimony or claims, or failed to make an
honest constitutional claim according to at least 5
of the Justices.
So most of the appellants were deceivers as adjudged
by the Court.
This decision will be as disastrous as Brown vs Topeka
where the Court listened to Sociologists who carried out
a very dubious study and failed to mandate, and have
still failed to mandate, equal funding and access to all
public schools in each State.
1
Bravo. This reads like a poem.
1
@T. Rivers More like a word salad.
@Stephen
Not at all.
I write separate lines because I am old
and my eyesight is failing.
Trump should just insert the question
right before the last date the Census can
be printed and then since the Constitution
mandates the Census be carried out
all the Liberals can do is fume.
1
I actually think the census decision was rendered meaningless after the gerrymandering decision came down. The whole purpose of the census is to determine rules of representation and governance. Republicans can simply ignore the results of the census and stay in power. It's not like they're concerned with putting tax dollars to work in their districts; quite the oppsite. They just want to stay in power. Census results and civil rights don't really matter if open, unambigious gerrymandering is greenlighted by an unaccountable, uncontrollable Court.
36
Progressives are right to celebrate their victory in the census case. Once again the "integrity of the Court" argument cowed the weak-kneed Chief Justice into ignoring his conservative principals, and states that happily harbor illegal immigrants may have the census-based population data to foist more of the costs upon the rest of us.
The footnote, however, is that one day (God help us) there will be a progressive President. Will progressives be happy then when the Court ignores its true role in the judicial review of federal executive action, and diverges into the President's secret motives? I think not.
When reviewing executive action, the Supreme Court is not supposed to sit as some super legislature, determining what is right for the country. The Court sits to protect the separation of powers under the Constitution. Once the Court determines that an action is within the authority of the President, how he exercises his policy discretion is not for the Court to decide. That bedrock principle of judicial review was thrown out of the window in this instance and the country will be worse for it.
Very hypothetically, if a future Supreme Court would be called upon to look into the heart of say Elizabeth Warren, could it reject her executive actions as being driven by her hatred of private material wealth and her desire to destroy the free enterprise system? I'm just saying . . . .
1
@AR Clayboy What’s all this “look into the heart” nonsense? Wilbur Ross claimed the Justice Department asked him to add the citizenship question. Now we know that just wasn’t so. Nobody had to “look into” anyone’s heart to figure that one out. And if all President Warren will have to do is not have her underlings tell dumb, palpable lies, then she’ll get whatever she wants by the SC with the greatest of ease.
2
Already Trump is being urged by Texas GOPer Chip Roy to simply ignore the Supreme Court.
Who will you appeal to when Trump ignores the courts? All the courts, all the time? Will Putin help? Boris? Who?
The slope is getting more slippery every day.
12
@stilldana
Let us be honest. The slope is a cliff and we are periously close to the crumbling edge.
1
@arusso Particularly in Oregon.
"The citizenship question is now history"? You spoke too soon Linda. Trump has just announced that reports that the Commerce Department is dropping its intent to include the citizenship question on the Census are "FAKE." This is all your fault Linda. Trump obviously had your column read to him (he doesn't read himself) and got mad.
/s
8
Roberts can dance and prance, but all it will take is the vacancy of one more “liberal” justice, and a trump supreme court will be cemented in place for many, many years. At that point, drop the acronym SCOTUS for what it will be: Rscotus (Republican supreme court of the united states).
6
I wonder whether Sec. Ross can be indicted for perjury.
9
Or lie,
To get on the supreme court.
2
He can take four for granted no matter how flagrant the lie.
2
Not nice for the Court to ask to be lied to better, either..
12
The fact that SCOTUS called out Mr. Ross by name and his testimony and his transparent motives is surely remarkable and a clear stain on this Administration. However, the reversal of yet another Trump Administrative agency decision, which would otherwise be afforded the highest level of executive branch rule and decision making and discretion, reveals the sloppy, unprofessional, and poorly conceived positions this administration has taken. This is another "W" for the 4th branch of government as well as the 3rd branch who keep doing their jobs!!!!!!!!!!!!! Thankfully!!!!! Hurray!!!!!
1
Appalling to see someone like Wilbur Ross, to whom this country has given so much, LIE to the Supreme Court. Yes, “contrived” is a euphemism for lie. Just disgusting. This Administration lies so frequently it’s we lose ability to keep track or even be surprised anymore.
11
Wishful thinking, Ms. Greenhouse. SCOTUS swallows the camel and chokes on the knat; fixing elections through Gerrymandering is OK, but being lied to on the citizenship question is only reluctantly, half-heartedly rejected.
Face it; we're stuck with an antediluvian majority on the Court for the next 20 years.
7
Did Roberts mind being lied to about the Trump administration's motivations in Trump v. Hawaii, where the administration got away with transparently phony explanations of its motivations to ban Muslims?
11
Summary of the opinion: "Don't come up here and lie to us."
@Janet E
And yet 4 other justices are ok with the lie!!
You have to wonder what Thomas, Allito and Gorsuch learned in Law School. from there public opinions to date it would seem that they did not learn very much at all.
8
Trump starts the whole thing again...what a mess
1
As much as he loves his right, Roberts ultimately wants the Court to have continued relevance. So every once in a while (and that is once in a long while) he goes left to keep the whole truck from driving over the cliff.
1
Between Citizens United and Gerrymandering, John Roberts' place in history is made.
452
@Independent
Don't forget the gutting of the Voting Rights Act.
78
This will be known in the history books as the administration that attempted to kill our constitutional democracy. Ignore him. It's the one thing Trump cannot stand. Imagine, Trump, the military under orders, Republican Congress the same, and a statue of a REAL president, Lincoln, sadly looking out on a mostly empty mall. Justice.
20
And don't forget the Roberts court gutting key provisions of the Voting Rights Act, when the chief justice said that the country had changed dramatically in the South and that, basically, racism was no longer a problem.
26
Ms. Greenhouse, I'll wager that a majority of Justices, perhaps all of them, read your erudite columns routinely in the Times. The piece which you authored before the Court handed down its consequential decision in the census/citizenship question case was powerful indeed, particularly as it related to its potential serious impact upon the future core legitimacy of the Court. I believe that your clarion call to the Court, especially to the Chief Justice, was impactful. Thank you for your important contribution which helped deliver an unassailable decision, solidly grounded in fact and law, and one which helped saved the
Court from itself.
372
@John Grillo Fortunately, I'm smart enough to agree with everything Ms. Greenhouse says (as well as with most of the others that take part in this discussion). Disappointingly, I'm not smart enough to say it the way the she -- and you -- do.
Thanks for the intelligent analysis and the cogent, crisp and clear communication. It's like receiving doses of oxygen when you feel like you're suffocating.
33
@John Grillo Heads up, John: That "unassailable decision" was just assailed by Trump.
6
Ditto!
2
I guess I'm a bit more cynical than Ms. Greenhouse. I imagine that Chief Justice Roberts is concerned, more than Clarence Thomas, for instance, about how he will be viewed in the legal history books fifty years down the road. This court will, after all, for the length of his tenure be referred to as "the Roberts Court".
So, when absolutely necessary for the sake of history, I suspect Roberts will do the right thing. Whenever he deems it cosmetically possible, however, I fully expect him to vote with the four other male, Catholic, right-wing hacks.
517
@Vesuviano
I agree; Yes Roberts is a right-wing hack - but one who is concerned with appearances so he chooses which cases he will allow to be 'lost' which cases he will allow the liberal wing of the court to 'win' - Roberts will not save the court or his reputation by these small balances. The Roberts court's legacy will not age well.
11
no to you and vesuviano. i know it must be hard on the democrats when the remainder of the court is clearly just four fair minded jurists with no political leanings influencing their opinions. as a libertarian i believe in a balanced court and i am optimistic that roberts has accepted his true role as the chief justice and must fairly balance both sides. clearly his views will likely be right leaning but i believe he will be fair minded.
@Vesuviano
Or maybe it'll be known as the McConnell Court.
14
Why should they care if they are lied to? Many of them lied under oath to get on the Supreme Court.
545
@Paul Murray
This is so important. Why have they been allowed to get away with it?
14
@Paul Murray...YES! Excellent point that I shall remember each time these political frauds pretend to make an objective fair decision. The SC is as predictable and political as all idealists feared.
15
@Paul Murray: Not many of them. Kavanaugh for sure and probably Gorsuch.
4
At one time I believed the courts not only judged on constitutional principles, and interpretations as society knowledge evolved, I was under the impression that the question of was a law justified and fair. Did the law serve justice or a political reason. As an example, the use of tinted windows in cars which were made illegal in some states just for the benefit of the police.
As I recall, there were several instances of such questions during the anti Vietnam protests where the current law was used to prosecute protestors, and even in the case of the Black Panthers whose mission began by providing breakfast and lunch to Black children who's family could not even afford that.
The question for me, is the law fair and just, if not it is not legitimate and as we have seen, used by despots and authoritarians to advance their own agenda at the expense of the public good.
5
Wait, I'm confused here.
If the courts are not accepting phony "post hoc rationalizations", how did they allow Trump's Muslim ban to go through? Trump has openly stated, while campaigning and while as President, that he wants a total Muslim ban. Rudy has openly stated that they (the administration and their lawyers) cooked up a seemingly plausible excuse that would lend a facade of legitimacy to such a ban. This was the ultimate phony rationalization. How did the court allow it then?
15
The fact that 4 of the 9 Justices of the Supreme Court said it is just fine to lie to us as long as you are a Republican administration seriously strains the credibility of the Supreme Court as a fair and impartial arbiter of our nation's laws. The damage they are causing our Republic can not be underestimated.
33
@Ken Cannot be overestimated.
1
Are you joking? The police have been lying to the Supreme Court for far more than a dozen decades. Everyone knows it, except apparently everyone who believes the pollyanna propaganda from the primary schools.
Perhaps the author should study far more on the subject of "Good Faith Exception."
The United States of America has a legal system that is pure farce.
5
The entire Trump administration relies on lies as the basis for ALL its "policies" so it is doubtful they will change, or want to change. Trump himself lies as a matter of course. Indeed, by all evidence (helpfully documented in tweets or video) his first instinct is to lie about whatever he is talking about. I wonder sometimes if he has any clue about reality.
5
It appears then that the only thing saving our republic from the ravages of a dictatorship is the utter incompetence of the budding dictatorship to manipulate their partisan justices. We are saved then not by some overpowering morality that is cursing through the conservative Court, but the administration's inability to pursue its goals through legal means.
Our saving grace is that Trump has appointed incompetent people who cannot get his policies through the Court. That's the kind of winning we need more of.
11
"the court rejected the administration’s stated rationale as phony — or 'contrived,'"
In plain English, Wilbur Ross lied to the court in his submission. Isn't that perjury? Doesn't the court have an obligation to punish such misbehavior, if only to deter future liars?
At the very least, does not lying to the court constitute contempt?
6
@Matthew Hughes - I keep asking a similar question about the fact that he lied in testimony to Congress when they were having hearings on the issue. Lying to Congress gets people into trouble - ask Bill Clinton.
1
Secretary Ross wanted to "better enforce the voting rights act". You have got to be kidding me! Why did they think anybody would believe that?
1
@Tornadoxy Choosing that transparently dishonest excuse was pure trolling and reflected utter contempt for the American people as well as the Supreme Court.
I defy a single Republican to stand up and say they believe improved VRA enforcement was the Trump administration's true intent.
If they can't, that leaves two possibilities. One is that Republicans love being lied to. That would help explain why the more lies Trump tells, the more they love him.
But I find the second possibility more likely: they simply love the effectiveness of lying in gaining and keeping power.
1
Now the Con is calling his own Admin's announcement FAKE and saying he is still pursuing the question.
4
Yes, he can take SCOTUS for granted, for the most part. Trump just has to make sure his lies make sense. This lie was too obvious that even Roberts could not get past the obvious dishonesty.
6
Nicely reasoned article - with lots of interesting bits about SCOTUS. But to my thinking - a SCOTUS that can rationalize Citizens United - is capable of all kinds of illogical decisions. Even allowing the administration to fix it's reasoning behind this current case. SCOTUS lacks a sense of shame, these days. It's a bad bunch. Gerrymandering, on top of citizens united - it's killing our democracy. And look at gerrymandering - SCOTUS legalized election fraud. That took a real lack of shame - no?
7
This was merely a bridge too far. Blatant lies and blatent disregard for administrative procedures. You could practically hear Roberts say, geeze, give me SOMETHING to work with.
2
Linda, I haven't read your opinion yet, sorry.
I am stuck on the accompanying photo of the Supreme Court with the phrase "EQUAL JUSTICE UNDER LAW" inscribed on the entablature.
This used to be a guiding principle of our democracy; now it is little more than rich irony.
2
Of course the continually hateful, socialist, democrats continue to make a huge deal out of nothing. Any business person would tell you this country needs a precise inventory taken period. And that was the reason for the census question. We must know how many citizens are in this country for numerous reasons which are too lengthly to list here. But the socialist democrats have no business acumen. By the way, the issue should have gone to the commerce department and not the Supreme Court which is partisan.
1
@Jan really off base, even for a Trump supporter.
2
@kristine, agree, not even in left field!
Thank you Ms. Green for being the one who can read those short (...” then on page 23, the tone of the argument suddenly changes.... “), opinions and then Concisely interpret those for me.
I am totally flabbergasted that the conservatives on the bench rejected Breyer’s argument that “Secretary Ross’s rejection of his own experts’ advice made the addition of the citizenship question unreasonable as a matter of law, “arbitrary and capricious” in the language of the Administrative Procedure Act”. Even if the smoking gun evidence from a dead conservative consultant’s computer files were never unearthed, there was absolutely nothing resembling Roberts’s “genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public” in the Commerce’s Department justifications. As Roberts explains “[a]ccepting [these] contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.”
By accepting the baseless support for the position that this would improved enforcement of the Voting Rights, the conservatives on the Supreme Court were very much willing to make their judicial review “an empty ritual.” It seems that Roberts is basically saying to the Trump administration “Hey guys, you are perfectly free to make up whatever baseless rationalizations you like as long as there is no direct evidence demonstrating that you are doing so.”
6
Oh, what a tangled web we weave, when first we practice to deceive! And Sir Walter Scott never met Trump and his toadies!
This confirms the mendacity of the Trump administration, which of course needs no further confirmation. It also confirms that Gorsuch and Kavanaugh are as intellectually bereft and partisan as Thomas and Alito.
Perhaps Roberts wants to be remembered as one of the good Justices on the Supreme Court, rather than in the same group as Taney.
1
Ms. Greenhouse writes excellent columns and this one is no exception.
Its implications are chilling. The scoundrels nearly got away with it - but for the contents of a dead man's hard drive turning up, SCOTUS would almost certainly have approved an administrative action rooted in dishonesty and cynicism.
When scoundrels get control of the levers of government, all of our checks and balances count for little unless we get lucky, as we did in the census case. We don't always get lucky.
A message to those in Congress responsible for confirming high officers of state: what you do really matters. You're our main line of defense against the scoundrels, not the courts.
5
Newsflash - Trump just said the citizenship question is Not Dead, and that previous reports to that effect from DOJ and the Commerce Dept. were Fake. What do we do when the POTUS defies the Supreme Court?
Except that we learned today that Trump thinks the citizenship question will still be on the census and that reports that the DOJ and Cendus will abide by the ruling is fake news!
1
White house to the Supreme Court: Who are you going to believe, us or the facts from another case that you shouldn't be paying any attention to anyway? No collusion, no obstruction. Very stable genius.
The naked lies and distortions of reality coming out of all agencies run by DT and Co. cannot mask their animosity to anything that was done in a compassionate vein, or for the public health and well being by the previous POTUS. Thank the goddess that Roberts found his spine on this one decision, even if he had been previously disposed to give the Administration what it wanted. Maybe the lie was just too much even for him. I pray he finds his better angel again for the Dreamers.
I believe that this court, packed with avowed 'literalists' would be hard pressed to allow any attempt to exclude non-citizens from legislative redistricting. Article 1, Section 2, of the Constitution reads in part, Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative;..." Clearly, the only group allowed to be excluded is Native Americans, and their citizenship was enshrined into law in 1924 by the Snyder Act. Since the 14th Amendment, all those residing in the US are 'free persons' and must, therefore, be considered in redistricting.
4
So if the court couldn't ignore the discrepancy between the stated reason behind the citizenship question's origin and the real reason, and rejects pretextual sleight of hand once it can't be ignored, why is it ok for red states to insist that abortion clinics have wide aisles and doctors performing abortions admitting privileges to local hospitalis? Those requirements are obviously pretextual. Everyone knows why they are there - and it ain't to protect women's health.
17
@Ted: The former is an administrative law matter. The latter is a pure legislative matter -- a straight up, "Is this law constitutional or not?," matter. Different rules apply to each.
1
The "cynical explanation" of the DACA case applies to the case where it is claimed that once the penalty for not obtaining health insurance was removed the entire ACA became unconstitutional. The administration position in both is that it is "just following the law" and therefore cannot be blamed for the consequences. And the administration never has to propose a replacement for either policy.
Finally, as others have commented, it is very clear that the damage to the 2020 census has been done. Moreover, I believe that the reason that Trump is not actively seeking some way to restore the citizenship question is that he has been told that by using sampling and other techniques the Census Bureau can make a clear estimate, by census block, of the number of voting age citizens, which data can then be used to further gerrymander state legislatures and congressional districts.
Ms. Greenhouse, what would we do without you?
I am afraid that, with this John Roberts Court, an absence of cynicism is tantamount to naïveté. And while I think it means to cement rigidly authoritarian (Republican) rule in America on a permanent basis, you have convinced me—to a point—to be open-minded about the apparent last-minute change of heart by the Chief Justice.
Here, I think, he was less conscious of his legacy as the Court’s steward than he was angered by the lie told by Secretary Ross. He couldn’t, after Hofeller’s trove, strain to argue that a commonplace murder was just a mere death. He had to have understood the racist and deceitful intent of the administration’s request to add the citizenship question. And being human, he had to inwardly bristle at being thought both a tool and a fool. Some Republicans do actually have principles. Some.
But next year, when DACA comes up, might not the Chief Justice know that most citizens—even the most educated and knowledgeable—have little grasp of the complexities of administrative law and policy? And, next June, with the presidential election only some four months out, keeping emotions at an overheated and perhaps unsustainable fever pitch, might not the Chief Justice be tempted to put his Court’s thumbs on the scales in favor of the representative of their political party and—let me argue this—their own personal approbation of Donald Trump—to dictate their votes on DACA?
Might he cave to the insistence of the Right?
4
This excellent article led me to your 2008 Q&A discussion on the occasion of your fortunately only partially successful retirement from the NYT (https://www.nytimes.com/2008/07/14/business/media/14askthetimes.html) . I learned more about the Supreme Court from reading these two items than I did during three years of law school and decades of practicing law. Glad to be seeing your by-line more regularly.
1
I think it is more likely that the Supreme Court would have had a hard time explaining their motivations after the Administration's true motives were revealed. I think the Court would have been happy to accept the false narrative, as they have with the Muslim ban and the equally weak reasons for Citizens United, Hobby Lobby, money is speech and overturning voting rights. They aren't any better than your average Republican, they just have a greater incentive to avoid shame.
1
This is a really great article.
Thank you.
1
The cynical position is more plausible. The gerrymandering question was of more immediate value to the Republican Party, so it was pushed through in spite of obvious corrupt partisan intent. The census question was jettisoned to provide some cover for the corrupt, unreasonable gerrymandering decision and preserve a fig leaf of apparent legitimacy to the right-wing, oligarchic Supreme Court.
2
Trump just tweeted this: “The News Reports about the Department of Commerce dropping its quest to put the Citizenship Question on the Census is incorrect or, to state it differently, FAKE!”
NOW I get it. Is the above just the latest addition to an ever expanding list of instances where Donald Trump himself has been proven to be fake?
I am afraid Ms. Greenhouse that a more cynical, if not outright despairing, view is to be applied in this case. Has it occurred to no one else that there has been almost no whining and whinging from the White House after this ignominious defeat? Has the DT suddenly acquired a sense of decorum and fair play? Allow me to be a tad suspicious. I am guessing the bright boys in the Red Book group have realized that with the 2020 census being conducted over the internet, they don't have to worry about the results. They will just ask Vlad to kindly make a few changes and voila, the minority rule of white evangelicals will miraculously continue. Too cynical? Sadly it is no doubt bootless to ponder the question, because we will never really know what happened. Sort of like 2016.
1
Sure he can ignore the SC. The protest voters made him the King and our feckless congress doesn’t seem to mind.
Judging from the article in the Times headlined, "Trump Vows to Move Forward With Citizenship Question on Census," it appears Trump has decided to just ignore the court's order. So, while he may not be able to always rely on his conservative judges, he can decide to defy them. Who is the Supreme Court to tell King Donald what he may and may not do anyway? And, what does that old dusty constitution have to do with anything? Rip it up! What Trump wants, Trump gets!
1
@Ms. Pea - Yeh - plus Roberts isn't even a Trump appointee.
Dear Ms. Greenhouse:
As always, your posts are very well reasoned and your analyses are a good read.
I, must however, disagree with you. The Court should not have granted cert for this case. The Constitution at Art. I Sec. 2, is clear as day. It states, in pertinent part that
Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.
Note the "shall" language. That, as you well know, is mandatory. Sticking the APA into the constitution is a red herring. Indeed, the President is being rewarded by both Gorsuch (there are no Democrat judges or, Republican judges") and Kavanaugh ("do you drink beer"), who, rather than honor the simple language of the Constitution, twisted themselves like pretzels, along with Justice Alito and Thomas (Mr. "high-tech lynching").
These four, particularly Justice Thomas, have little or no respector, regardd for our founding documents. They only have fielty to the Republican party.
2
All I read from the decision was how Roberts did a lot a verbal gymnastics to simply stating the administration lied. Yes, lied. A simple and correct word rightfully applicable in this case
3
Is there a need to spend millions of tax payer monies to do a senseless meaningless census? I am sure there are other circuitous ways of doing it and getting ball park numbers just like if there was a census.
1
Roberts plays a little game: He makes big decisions such as the one on Gerrymandering that benefit the Republicans and the Right, than makes decisions of less consequence such as the census decision that make it appear that the Court isn't "political."
Nonsense. The court has made decision after decision to benefit the Right and the rich — Bush vs. Gore; Citizen's United; you name it — and leading to the massive death and destruction through outright aggression — Iraq — or malignant neglect — Trump and climate change.
The current Court exists to serve the ultra-rich, not the rest of us, Robert's protestations aside.
499
@Philip S. Wenz About 3 years before his death Scalia was asked his reasoning in finding for Bush in Bush v. Gore. His answer? Oh, that was such a long time ago! That's it, that's what he said when he handed the victory to Bush for no reason than sucking up to the rich and the Right, as you said. Pathetic that so many thought Scalia had a good legal mind, but he made many partisan and judicial code violation decisions. Gorsuch & Kavanaugh are Kock Institute graduates and trump's new appointee, Trevor McFarland (?) has been a member of the Federalist Society since 2003. All part of the Koch family long time hatred of Democracy & demanding a rigged market without any regulations. And trump complied. If America does not start Reading Facts and Real News, Democracy will cease to exist. And the republicans continue to laugh at this issue which is happening now.
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@Philip S. Wenz
The court doesn't "exist to serve the rich", there's plenty of evidence that the founders had no such intention. But the court has been corrupted by RW ideologues who call themselves conservative but serve the Right and the Rich and despise Democracy, Civil Rights and the checks and balances of the Constitution. These RWers own the Republican Party and pick judges according to their undemocratic beliefs which led to the madness of flooding elections with Dark Money, damaging Voting Rights and interpreting the Second Amendment as license to get military style weapons and kill school children, people in church, synagogue and Mosques and corrupt politics and make money off health care, data from Social Media and to hell with the quaint idea of the Public Good. And that's not all.
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@Saint999
Philip Wentz didn't claim that the Supreme Court exists to 'serve the rich' as a matter of historical intent. He wrote that the *current* court exists to serve them. And you appear to agree.
31
Does reasoning on an issue (like the Census or DACA ) start with the law and go from there to the issue---the reasoning process going from legal principles to action---or does it start with the issue and attempt to find reasons to change the situation? For example, one sees a valuable item that he might steal. Does he first ask: what does the law say about stealing ? Does he have good reason to ignore this law (e.g., the item is needed to save innocent lives). Or does the chain of reasoning start with the conviction that the item must be stolen. Then how can he justify stealing it. Then how can he twist the law to exonerate his theft.
In the Trump-Ross attempt to add the citizenship question and in the attack on DACA ---I find it obvious that first came the conviction that the Republican party's desires must first be met---cut down on votes for the opposition and get rid of all non-legals ---and then the thinking , the reasoning began.
The law was seen as a hindrance and the Trump administration would have preferred to ignore it entirely--as it has shown itself wont to do frequently. But circumstances forced them to argue, to reason in court. As expected in this situation , its arguments (to quote article and dissents) were "capricious ", "contrived", "arbitrary". Trump and his cohorts have no respect for law but intend to weaponize the courts to serve them rather than the public weal.
The Commerce Department told the Supreme Court that citizenship question should be asked because the Justice Department needs citizenship data to better enforce the Voting Rights Act. Federal courts have recently ruled it must consider the number of voting-age citizens when designing Hispanic set-side district. That wasn’t a lie.
Justice Roberts did not accuse anyone lying. He wrote that Commerce Secretary Ross’ decision to reinstate the question “was supported by the evidence” and was “reasonable and reasonably explained, particularly in light of the long history of the citizenship question on the census.”
However, Roberts agreed with the lower court that Ross’s rational for reinstating the citizenship question were pretextual. (Most Americans would say Ross had “ulterior motives.”)
The assumption is that Ross wants to give states citizenship data so they can base voting district maps on the number of citizens eligible to vote rather than the number of residents. States in danger of losing congressional seats or Electoral College votes could use the data to advocate for changes in the way congressional seats and Electoral College votes are allocated.
So the Supreme Court ordered the Commerce Department to go back to the district court and fully disclose its pretextual reasons. This should not be a problem, since this will simply add other valid reasons for asking the citizenship question.
2
Yr summary's not as persuasive as Linda's.
The question will be on the Census, it is not up to the Supreme or any other court to decide which is why they did not.
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@Knute
In writing the majority opinion, Justice Roberts settled the crucial citizenship question issue by agreeing that “the Enumeration Clause permits Congress, and by extension the Secretary, to inquire about citizenship on the census questionnaire.” Asking the citizenship question is constitutional. That’s no longer debatable.
The only question is whether the Justice Department can settle issues with the district court on time to add it to the 2020 census.
1
@Knute
You are wrong.
The Supremes UPHELD the District Court's decsion not to allow the citizenship question on the census.
"The judgment of the United States District Court for the Southern District of New York is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion."
So the question will NOT be on the census.
3
@Joe From Boston
The Supreme Court ruled that asking the citizenship question was constitutional and that Secretary Ross' decision to add it was "reasonable and "supported by the evidence." It also found the decision did not violate the Census Act.
The Supreme Court only agreed with her district court that the Commerce Department did not fully disclose"pretexrtual" reasons for reinstating the citizenship question. If has to go back and make full disclosure. Ir should be able to do this in time to add the question to the 2020 census.
1
There have been a few recent Supreme Court rulings that were defeats for Trump in which Gorsuch voted with the liberals, and Kavanaugh voted with the liberals.
I would think it's possible that Chief Justice Roberts, ever conscious of his legacy, may have sat down with the justices and reminded them that they have jobs for life, and Trump doesn't.
Trump can yell and pout and scream if he doesn't like a particular high court decision, but he can't say "You're fired!" to his two appointees. Remember how disappointed he was when he found out he couldn't just fire Federal Reserve Chairman Jerome Powell?
4
I disagree with Ms. Greenhouse’s conclusion that Trump can no longer take the Court for granted. On the major issues he need have no concern as the gerrymandering case show but of course that isn’t Trump’s major issue. He only really cares about a Court that will confirm his “if I do it it’s legal” view of the Presidency and that he is immune from criminal prosecution for life!
He is also interested in making sure that women are put in their place with his shoe firmly on their necks. That is a side benefit of his two picks for the Court. It makes his cult base happy.
Long term he wants to destroy our government and way of life. He is anti Constitution and pro dictator and his supporters are too. I don’t see the Court as now constituted doing anything to stop him. I sincerely hope that I am wrong a out the court but I don’t think so.
5
I agree that the Roberts and the Breyer opinions appear to show a change of heart on the part of John Roberts.
I think the reason is simple: Roberts is aware that the Hofeller evidence is coming, and that it will make the position of the administration look very bad, to the point of proving that Wilbur Ross baldfacedly lied to he courts under oath.
Roberts had to consider whether an opinion supporting the administration on the citizenship question (putting it on the census) would look especially bad, even malign, once the Hofeller evidence is reviewed in the case that the 4th Circuit Court of Appeals just returned to the Vorginia trial court, and the evidence becomes completely public.
Knowing what is "coming down the pike," Roberts only had one option, namely to shoot down the citizenship question on the census forms.
To decide otherwise would open Roberts to enormous criticism for the reminder of his career.
1
Of course, four "justices"--in no surprise given their history--had no problem with Republicans lying to the Court or in ruling in their favor in furtherance of Republican interests. And for every census or ACA case in which he joins the sane POTUS justices, there are dozens in which Roberts votes with the other four Republican operatives in enabling Republican goals, often on flimsy, tortured, or clearly wrong (to an objective observer) readings of the law.
4
Apparently four justices do not mind being lied to if it suits their political goals.
17
Do you mean the four who voted to uphold Obamacare? It was all a lie...
I always find Linda Greenhouse's columns to be well-reasoned and insightful. I'm persuaded by her reading of the census case, though it's worrying that the chief justice would make a last-minute reversal based on a sudden attack of reason or conscience or calculation. It hardly inspires trust in his future decisions. The thing about dark nights of the soul is that they're impossible to control. The phrase itself comes from John of the Cross, a 16th century Spanish mystic, and mystical revelations are by definition unpredictable. I'd prefer justices who based their decisions on clear-headed logic rather than communion with a higher power. Mystics don't make for good or reliable judges.
16
@Shane, you state:"it's worrying that the chief justice would make a last-minute reversal based on a sudden attack of reason or conscience or calculation". Thank God in the high heavens, that a Justice used reason and conscience, not calculation in reversing his position toward what is right, not what is expedient politically. It causes many of us to have continued faith and hope in rule of law, and democratic process in a free republic. I'm grateful. In these dark political times, this gives me hope in a brighter future for our nation.
9
@D. Smith I'm happy with decision, definitely, but you have to admit, deciding cases in this way is worrisome. The revelation might not have come, as in the case of the Muslim ban.
My hope is the Democrats will take the WH and Senate and increase the majority in the House so they can add 2 justices to SCOTUS (Merrick Garland being one) to tip the scales more in tune with the country at large.
20
@Rpasea
I want Merrick Garland's daughter (or son) on the Supreme Court. I don't even know if he has children, but my point is that I'd go with anyone sane and with integrity who is under 40 (under 30 would be even better).
These life terms to the S.C. mean that we're likely to be saddled with the Kavanaugh and Gorsuch for 30 years. And how long have we already had to put up with Thomas and Alito? And how much longer will we need to? What a depressing thought. Just thinking about it makes me want to go pickle my liver.
As an attorney, I particularly enjoyed the writer's analysis. Unfortunately, though, what she's essentially saying is that were it not for the outright lie by Ross (whose reputation for integrity is less than noteworthy) the court would have handed yet another devastating defeat to the Democrats. And furthermore, if Trump and his lackeys continue to rule after 2020 Roberts pale efforts at presenting a non-partisan court will be slashed to shreds by new justices that the Republicans put on board the high court.
26
As far as the question of taking a cynical view of the US Supreme Court, I find it ha been difficult to be cynical enough about this court for a very long time. Calling some of its partisan members with the title of Justice is a degradation and an insult to the very meaning of the word.
20
Four justices were willing to stomach the big lie, despite a mountain of evidence uncovered by the district court. In fact they happily gobbled it up.
Alito opened his opinion this way: "It is a sign of our time that the inclusion of a question about citizenship on the census has become a subject of bitter public controversy and has led to today’s regrettable decision. While the decision to place such a question on the 2020 census questionnaire is attacked as racist, there is a broad international consensus that inquiring about citizenship on a census is not just appropriate but advisable."
The only thing wrong in this picture, he suggests, is the hysterical animus and name-calling of the administration's opponents. He refuses to acknowledge the facts and certainly ignores the context.
48
It’s not nice to lie to the Supreme Court.... but the Trump administration will continue to do so. He can’t help himself.
12
I see these two decisions as inherently related. If the purpose of the census is to count everyone and they know the citizenship question will taint the count, then its a no-brainer to disallow the question. Since the census is not a tool of law enforcement, allowing the citizenship question to be asked would further the ability to gerrymander. By saying no to allowing the citizenship question the Court indirectly said they're staying out of gerrymandering, then reinforced it in the gerrymandering case by saying so directly.
7
i see it a bit differently. to my eye, the gerrymandering case will have much more serious and definite consequences, the consequences of the citizenship question were always more hypothetical. by deciding the gerrymandering case pro-republican, the court covers its ass defensively about being solely a political institution, yet allows the egregious erosion of democracy to continue.
First, the census question has probably already worked its magic. Many illegal aliens will no doubt do everything they can to avoid census workers because census question debate simply reinforces what they already know -- that Trump wants to persecute them for nakedly partisan reasons. Second, to declare victory here because Justice Roberts suddenly discovered he still has a gag reflex obscures the fact that the gerrymandering ruling is a much bigger deal. Much of the country is now stuck with what amounts to minority rule. And, as things stand, that is going to be very difficult to change any time in the foreseeable future.
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@Floyd Hall The rest of the country is only stuck with minority rule if they allow it to happen by reelecting the GOP to State Legislatures. Independent boards need to be established to align Congressional Districts. Perhaps we need an AI entity to do it for us if we can't act like adults in State Government.
5
@John Warnock It's going to take a long time to do that even under the best of circumstances. And in many parts of the country it may never happen at all unless the composition of the Supreme Court changes.
You might want to examine some of the nuances of the Chief Justice's statement "“That decision was reasonable and reasonably explained, particularly in light of the long history of the citizenship question on the census.”
In fact, there is not a long history of the citizenship question on the census. However, there was a considerable smoke-cloud raised by people who made bogus claims in legal documents, including confusion of the census with the community survey (which is merely a sample, and not a national count).
Justice Gorsuch himself claimed that citizenship was determined on the 1820 census, no doubt on the flimsy pretext that asking the total "number of foreigners not naturalized in a household" equated to a citizenship determination. And since the 1820 census only enumerated the head of household, the claim was facially "contrived." Roberts's statement thus may have been part of an arduous effort to obviate the political inevitability of intra-Court squabbling over truthfulness.
This of course suggests that the remand to the lower court was knowingly made in expectation that when the falsification was explored in detail, the results would moot the necessity of a SCOTUS review. But we can all probably expect that Trump will continue declaring that the question is still in the census ... and will someday explain that he placed it in the community survey, and therefore won this battle, bigly.
SCOTUS appears to have been spared.
13
@Sequel
I can see why Trump's appointees would refer to the 1820 census. That was when women didn't have the right to vote.
I wouldn't be surprised if they'd consent to repeal the 19th Amendment that granted women the right to vote at the rate they're going.
1
@Sequel Trump is already declaring that the question will be on the census, even though it has been sent to the printers already minus the citizenship query.
So why is he doing this? To try to brag to his followers that he is above the law and it has to conform to his will and to nothing else? One Texas congressman is urging Trump to ignore the Court.
How far will the GOP go to make this man the Supreme Leader with no constraints upon him whatsoever? And really how pathetic that they are backing the one man for the job of Supreme Leader who is so horribly out of his depth.
@JFMACC Serious conservative pundits with a con law bent have been urging Trump to defy the SCOTUS. Their goal seems to be to play for time, in hopes that the battle for a stay will further delay the issue, and thereby give Trump an opening to claim the power to delay the actual census.
Justice Roberts doesn't share their interest in dragging the SCOTUS into a public brawl in which justices are accusing each other of lying. William Barr doesn't share their interest in being accused of perjury in a Supreme Court pleading.
A popular expression that begins with the word "cluster" adequately captures the essence of the impasse.
We were told that Trump nominations to the Court would spell the end of democracy and that Roberts and Alito, to say nothing of Kavanaugh and Gorsuch, spelled the end of our democracy. It hasn't turned out that way, which should cause all of us to take future predictions of disaster with more than a grain of salt. But it won't.
2
@Wine Country Dude You think they are going to destroy our democracy all at once? They aren't interested in a coup. They want people to think everything is normal even though you are losing rights and others are gaining rights.
They have already done great damage to our democracy with Bush v Gore, Citizen's United, striking down key parts of the voting rights act, making corporations people, equating money with speech, etc. etc. Has it killed our democracy? No, but it's pretty messed up that 4 justices considered the citizenship question to be legal, knowing that it was all just a ploy to skew the Constitutionally mandated count.
Our democracy is based on a Constitution that was clear in its intent but the current Supreme Court parses the words to make it defy that intent. They should have voted down gerrymandering if they followed the intent of the document but they don't care that millions upon millions of citizens' will is ignored through partisan tactics.
Every time the Supreme Court decides in favor of the wealthy and connected over the common man our democracy is eroded until there is nothing but hollow words.
11
@Wine Country Dude
You're saying the same sort of thing millions of Germans said in 1934. I don't share your optimism, nor that of Ms. Greenhouse (whose analyses are always insightful).
Something seems eerily familiar regarding not just the right-wing justices, but also the DoJ, the cabinet agencies, and Trump's public pronouncements:
"Fascist states focus on dismantling the rule of law, with the goal of replacing it with the dictates of individual rulers or party bosses. It is standard in fascist politics for harsh criticisms of an independent judiciary to occur in the form of accusations of bias, a kind of corruption, critiques that are then used to replace independent judges with ones who will cynically employ the law as a means to protect the interests of the ruling party."
From Jason Stanley's excellent 'How Fasciam Works: The Politics of Us and Them.'
3
It hasn’t been the end of your democracy, yet. Be patient. It’ll get worse.
5
Yet another excellent column by Ms. Greenhouse. Thank you from the very bottom of my heart for the clarity with which you analyze SCOTUS's decisions.
Taking a step back, it would seem to me that CJ Roberts is becoming more and more of a swing vote.
As a purely counterfactual exercise, let us suppose that Merrick Garland was appointed (as he should have been) making Neil Gorsuch's appointment null and void. Going further down this rabbit hole, HRC would have become POTUS and nominated some one other than Brett Kavanaugh, who, let us assume, would have been seated.
In this hypothetical scenario, how would CJ Roberts have voted on these issues? If I dared to guess, I'd have to say that he would have moved far more to the right than he has now.
What is the point of this counterfactual analysis? I think CJ Roberts is an astute reader of the country's mood and wishes to leave a positive legacy of his tenure as CJ and has therefore shifted ever so slightly to the left. And, therefore, even though I am no big fan of CJ Roberts, I am thankful for his efforts in balancing an otherwise rightward tilt of the SCOTUS.
I wonder if Ms. Greenhouse would be willing to add her views on this counterfactual analysis.
10
But does this set a precedent that manufacture reasoning to defend policies will be rejected? For instance would a challenge to voter ID laws be upheld if it were shown that they originated to suppress the vote rather than for the stated reason of addressing an unsupported fear for the integrity of the vote?
19
I suspect the census decision, and several others, may be about legacy more than law. Justice Roberts awoke one day and realized that without immediate action that the legacy of the Roberts Court was to be - as you put it - a wholly owned subsidiary of Donald J. Trump.
We can expect the Chief to veer ever so slightly left when the law demands it and doing so will be but a mere inconvenience to the Republican Party.
32
@Dave
Maybe it should be henceforth referred to as the Trump court. The strings on the conservative justices wrists and ankles are clearly visible and the lead straight to the Oval Office.
1
It is discouraging to see the lengths that Trump and the GOP will go to retain their control of the government in the face of popular disagreement. Franklin was right to tell a women " a republic if you can keep it."
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Thank you Ms Greenhouse for this wonderful analysis for the layman to read.
When I read this a few things come to mind
1) We are like Sunni's and Shia's in the USA now, the minority ruling the majority
2) As detailed by the comment from Critical Rationalist, the court is packed by illegitimate judges on the bench. They will be with us long after trump and mcconnell are off the stage. Their affects upon our daily life will be felt through our grandchildren and perhaps even their children too.
3) The über conservatives on the bench, Alito, Thomas, Kavanaugh ( Gorsuch seems less strident than these four fellows) will twist and turn and couch their opinions in 'constitutionalism' yet somehow, someway , the opinion always manages to suppress the rights of the poor, people of color and in many instances the majority of people.
4) Republican and conservatives as a lot are basically never empathetic to suffering. As long as the rich remain rich and powerful, republicans are sated.
The country is in a perilous place these days. trump, and trumpism has allowed that which was in the shadows to come into the light and show its ugly face. Its the new normal.
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@Philo - I think Republicans and authoritarians in general are not indifferent to suffering, but actually need to see suffering inflicted in order to be sated.
Republican notions of "justice" are strongly focused on punishment if you hadn't noticed, and nothing makes a Republican angrier than the thought of the guilty going unpunished or the undeserving being rewarded. They are strongly motivated by retribution.
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@Philo. Edmund Burke is alive and well in this Court
giving deference to the religious right and to the medieval idea that property and position are god-given and must be shown deference.
And yet, the Supremes could not quite bring themselves to say unequivocally "no" to the citizenship question, which would have been a real result rather than one that left the door still open for a less tainted argument, and allowing Donald Trump to insist that he was moving forward with the question.
The court is definitely showing its colors in these decisions. Yes, we'll decide in favor of Republican monkeyshines, but you have to present a rationalization that can't be proven to be a lie.
The glass may be half empty. (or only four ninths full).
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As Ms. Greenhouse notes, there were four dissents. The Court did not speak with one voice on the issue of the census.
In fact, the two justices whom Trump has appointed joined with Thomas in essentially saying that the Court owes such deference to the Executive Branch that it has no authority to call out Secretary Ross on his lies. Thomas, Gorsuch, and Kavanaugh only agreed that it is in the Court's purview to review this case but that they should give such latitude to the President that telling a consistent lie is okay as long as everyone complies with the appropriate administrative processes. Such reasoning guts the principal of judicial review, making it a charade only--a farcical one at that.
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@Jason
They didn't even demand the appropriate administrative processes, which were clearly violated in this case.
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@Jason
When Democrats are next in power, do you want Republican appointed judges regularly questioning the motives of the executive branch? Thomas has a good point.
@Jason - telling a consistent lie while complying with the appropriate administrative processes is how Kavanaugh got his seat on the bench after all.
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I take a much more sinister view of the court. and in particular Chief Justice Roberts. There have been, and there will be more ''benign'' issues before the court, where it ( he ) will choose to SEEM like it is unbiased.
What that means, is that what does the issue of citizenship really mean, if partisanship continues unabated ? (generally in republicans' favor)
Not much.
There are other issues, but the most common one is regarding the Affordable Care Act. What does it matter again, if it is propped up at the federal level. if it is being picked apart at the state (republican controlled) level, and administratively at the federal level? (again republican controlled)
Again, it is all temporary reprieves and hollow victories.
The court (wildly partisan and radically conservative) has been one of the most activist (making new law without and against precedent), that we have seen in modern times. It will continue to be, and only grow, if republicans keep control of the Senate for the next 2, 4, 6, 8 years.
RBG can hang on only for so long.
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According to his announcement today (doubtless after this article was written) he is STILL going to introduce a citizenship question into the census.
That suggests he is not so much taking the Supreme Court for granted any longer, as he is ignoring it altogether.
We are surely in new territory here.
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@Paul McGlasson. Ya got that right, hon. I think they call it authoritarianism, sometimes tyranny, sometimes one man rule. Republicans — you think you count for something? No, sir, you are unnecessary — got that? He rules by fiat.
President Trump STILL treats the court as a wholly-owned subsidiary. Except now he realizes he is dealing with a wholly-owned subsidiary that sometimes chooses to disregard the wishes and directives of the parent.
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@Jay Orchard Maybe a new expression will find its way into the vernacular: "mostly-owned subsidiary."
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The good news is that Roberts had the courage to see the obvious, and thus saved the Supreme Court from looking 100% partisan--again. The bad news is that Thomas, Gorsuch, Kavanaugh and Alito were not concerned with the Trump administration lies. So, similar to the 43% of Americans who approve of Trump, it seems that about 43% of the Supreme Court doesn't care about people lying in court. The percentage who don't care about the truth is even greater in the Senate. This argues for more investment in education and free college for all before the numbers grow even higher.
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@Richard Lee
When Republicans repeatedly sue the next Democratic administration for impure motives, impeding the pace of reform, you may see the wisdom in Clarence Thomas' views on letting the executive branch do whatever is in their power, regardless of motive. This is a bad precedent.
@Tom Meadowcroft - what makes you think Clarence Thomas won't just say "oh this is totally different" as he strips powers away from a Democratic executive?
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My goodness! Thank you. What a wonderful summary.
As for DACA: Throwing these innocent young people out of the only country they know is definitively brutal and cruel, and a racist bone for the Trumpies.
What cynicism: Claiming the aim of adding the citizenship question was the protection of minority voting rights, when in fact their aim was the opposite--
I like that very much: "the reasoned explanation requirement of administrative law." Which applies to both the census and DACA questions.
In short, the administration failed to provide any valid justification to support their claim that DACA was illegal. And post hoc rationalizations are a no-no.
That's the crux of it. Their real reason for taking this tack is to avoid accountability for an immoral disruptive inhumane measure.
Which is also probably yet another crime against humanity perpetrated by this administration vis-à-vis brown folk, according to the criteria spelled out in the Rome Statute.
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@Robert I'm in agreement, thanks for providing your thoughts. I'll had my two cents, re DACA recipients. I don't have the figures on how many of the "dreamers" are leading productive lives, but it appears to be most. Some are still proving themselves as successful students, and others are maintaining their employment and paying their taxes. And, "raising some 200,000 American-born children and going about their lives" in this country. That's what makes America great (and not again, for it's already been great for a long long time). I'm proud to consider them Americans. Wouldn't this administration be shooting America itself in the proverbial foot by deporting all these productive young people? After all, the recipients are working hard, and are devoted to staying in the United States; one day, most will be paying their taxes to the national and their respective state treasuries, to Social Security, and to all the other good social programs that are collectively funded through payroll deductions.
My logic is lost on this Trump gang. If the Administration is brazen enough to argue the facts, in front of the Supreme Court, with fabrications, it's likely dumb enough to eject hard-working taxpayers from our nation. USA already suffers a significant revenue shortfall from the GOP tax cuts, which was little more than a lunatic exercise in the faith that corporations, given tax cuts, will willingly create new private sector jobs.
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@Kev2931 - of course you benefit from the "dreamers"; they are easily a net gain to your economy and their communities. But even the "average" immigrant still outperforms the average natural-born citizen. And people, in general, are a boost to the economy, not a drain. Nobody ever became a superpower with a small population.
The whole conversation on immigration needs to change because it is built on false premises.
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But for Bush v. Gore, when the right-wingers on the Court hijacked the 2000 election, neither Roberts nor Alito would be on the bench.
But for systemic disinformation campains by Russia and the right-wing media, neither Gorsuch nor Kavanaugh would be on the bench.
But those four justices, of questionable legitimacy, are on the bench. And thanks to them, we now have the pro-gerrymandering decision Rucho v. Common Cause. It's just fine for members of Congress to select their voters, rather than the opposite.
And of course we also have Citizens United. Anyone with enough money, anywhere in the world, can now decide who will and who will not be a member of Congress.
Perhaps President Trump can't take the Court for granted, but the ultra-rich most certainly can.
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@Critical Rationalist Excellent points. I hope all those Nader voters in Florida are enjoying this. Tell me again how there was no material difference between George W. Bush and Al Gore -- I need a fit of rueful laughter today.
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@Robert E. Malchman
Absolutely.
As I recall, Nader got 97,000 votes in Florida.
W Bush won Florida by 537 votes.
And then won the Electoral College even though he lost the popular vote.
The Middle East and Europe will be paying for the sins of the Iraq invasion for two generations.
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@Robert E. Malchman
Put Nader aside for a moment; people have a right to vote for a minor candidate. Put aside the badly designed Palm Beach County ballots. I wish the wimpy Democratic Party response to the Republicans' all-out legal war in Florida and mob attack on the Dade County recount would get the credit it deserves. And do remember the irrationality of a court issuing a decision it states cannot be a precedent.
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Well I would not exactly call it a Earl Warren Court ie Eisenhower thought he be republican and he became a super liberal but at least now with Roberts there, he is signaling that he will be the swing vote, more conservatives but not always.
The key for the democrats is to win the Senate and WH in 2020 since the next vacancy will probably be a left leaning judge.
Nominate somebody who can beat Trump not an identity obsessed, social engineering, east coast liberal, never met a war, trade agreement, Wall Street banker I did not like candidate like Hillary.
Also in purple states to take the Senate do the same.
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@Paul
I hope to see Merritt Garland nominated--and approved! A non-partisan, left leaning, compassionate centrist is just what we need.
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Only likely if we get a Dem President but still have a GOP majority in the Senate in 2020. If we have Trump again he will appoint more Kavanaughs. If we have Dems in Senate and as President they will find a very liberal nominee.
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@Alexandra Hamilton. I’m hoping the latter, and that she is Rashida Tlaib, BA, Wayne State; JD, Western Michigan University. She will break the current status quo of jurists elevated from only elite private universities, and at 45 in 2021, she’s young enough to drive conservatives crazy for at least another 30 years. It would be a trifecta if she were to replace Clarence Thomas, whose increasing lunacy made it impossible to continue on the court.
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The proposed addition of the citizenship question had the effect and will have the effect it was designed to produce. Less immigrants will answer the door to census takers and therefore will be not be counted. Like him or not, President Trump is a master at getting the result he wants even when he is eventually overruled. In today's society, saying something is enough to have it believed by the masses that don't read and won't take the time to understand even if they did read. The Democrats could learn a lesson here.
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Exactly. The damage is done on the 2020 census.
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@obafgkm
Unless a massive education effort is undertaken. This is the issue that Tom Steyer needs to get behind instead of his useless and self aggrandizing stunt on impeachment. Mobilize the voters to impeach Individual 1 themselves.
6