The bad faith of the Supreme Court conservatives

I get and accept that the Supreme Court conservatives have different views from me that will lead to different outcomes on some issues.  I think those views are problematic, but I think it is reasonable to have a different understanding of how to interpret the constitution and federal law.  I.e., I think they generally act in good faith.

But honestly, when the Trump administration comes before them having acted entirely in bad faith (something the Trump administration does on a regular basis, of course) I don’t know what to call it except bad faith for them to simply pretend that the Trump administration is not doing so.  Really good Linda Greenhouse column on this:

Harmful as that impact would be on the affected areas, I want to argue here that validating the Trump administration’s cynical hijacking of the census would have a devastating effect on the integrity of the Supreme Court.

Never mind that three Federal District Courts, ruling since the first of the year in three cases, have found the addition of the citizenship question to be procedurally improper or flat-out unconstitutional. There are respectable contrary arguments that might be made, under the Administrative Procedure Act or the Constitution’s Enumeration Clause, or there would be, had the administration acted in the good faith that Judge Jesse Furman, ruling in the case now before the court, found to be conspicuously lacking.

Perhaps the justices who appear poised to overturn the lower-court decisions really believe that Congress has delegated its constitutional census obligation to the secretary of commerce to conduct the enumeration however he wishes without judicial supervision. Maybe they really think that the 18 states suing the Commerce Department lack standing because any harm that befalls them from the citizenship question is due not to the government but to the “illegal” acts of immigrants who fail to answer the census. These propositions constitute the core of the administration’s argument. If the justices are honestly persuaded by them, well, that’s litigation for you. It’s a zero-sum game in which someone wins and someone loses.

But if the plaintiff states are going to lose, it seems to me that it matters greatly how they lose. What was depressing and even scary about the April 23 argument was the disingenuous lengths to which the conservative justices were willing to go to tilt the case in the administration’s favor. They played dumb. They pretended not to know what they surely knew: that the citizenship question will depress the census count in a way that is predictably harmful and that the administration’s brief concealed the real story of how the citizenship question made its way onto the census. In other words, I have enough respect for the justices’ basic intelligence, which includes the ability to read the same briefs and opinions that I read, to conclude that they know full well what game is afoot.  [emphasis mine]

Don’t take my word for it. Read the transcript. The conservative justices were at pains to challenge the very idea that the citizenship question could depress noncitizens’ response rates, despite the fact that numerous Census Bureau studies have shown that to be the case…

In the administration’s brief, Mr. Francisco complains that “until now no court has seen fit to police the contents of the decennial census questionnaire by even entertaining an arbitrary-and-capricious challenge, let alone upholding one.” Could the reason be that no administration before this one thought to pull off such a trick? But this one did, leaving the Roberts court with a choice: It can be the administration’s enabler or it can acknowledge the truth and be a firewall. That choice is a fateful one, for the court and for the rest of us.


About Steve Greene
Professor of Political Science at NC State

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