Once upon a time, Supreme Court justices cared about the truth and the law. That doesn’t mean that they all agreed on everything. If they did, every decision would have been unanimous. But reasonable people can disagree. In particular, when the language of the law isn’t totally obvious, reasonable jurists will find different ways to view it. That leads to divided Courts.
But when the Citizenship question hit the Supreme Court, the very concept that the Justices would somehow be constrained by facts and the Law was called into question. Let us begin with Justice Breyer. In his dissent, joined by the other Lefties, he says:
“There is no serious dispute that adding a citizenship question would diminish the accuracy of the enumeration of the population …”
This is overstating an unsupportable conclusion. We do not know the best approach. All of them have statistical concerns. Yet Breyer goes through a long litany of arguments picked to support his argument that the Census will be less accurate if the citizenship question is included.
An extended discussion regarding the accuracy of the count precedes his dissent, and it is clear that no counting methodology would be 100% accurate. The Secretary of Commerce asked his staff for methods to do the count, and they provided three options. Ultimately he asked them to combine two of the methods, and arrived at what he assessed to be the most accurate, as the law specifically expects. And as Roberts notes, “the Secretary” is to make this decision, not his staff.
But the Left is completely unconcerned. Breyer goes on with:
“The Secretary decided to ask the question anyway, citing a need for more accurate citizenship data. But the evidence indicated that asking the question would produce citizenship data that is less accurate, not more.” (Emphasis in the original)
Yet a casual examination of the evidence included in the decision shows that once again, Justice Breyer is not being truthful. In fact, the data shows that without the question, it was likely that we would have reduced a major source of error from about 10% of the population to low single digits. That is more accurate, not less. But since the Left has always been all about results rather than truth, justice, and the American way, should we be surprised?
Unfortunately, the Right side of the Court, in particular Justice Roberts, has other blind spots that lean toward damage to the rule of law. As Justice Thomas notes in his powerful concurrence:
“The Court’s holding reflects an unprecedented departure from our deferential review of discretionary agency decisions. And, if take seriously as a rule of decision, this holding would transform administrative law. It is not difficult for political opponents of executive actions to generate controversy with accusations of pretext, deceit, and illicit motives. Significant policy decisions are regularly criticized as products of partisan influence, interest-group pressure, corruption, and animus. Crediting these accusations on evidence as thin as the evidence here could lead judicial review of administrative proceedings to devolve into an endless morass of discovery and policy disputes not contemplated by the Administrative Procedure Act (APA).
“Unable to identify any legal problem with the Secretary’s reasoning, the Court imputes one by concluding that he must not be telling the truth. The Court therefore upholds the decision of the District Court—which, in turn, was transparently based on the application of an administration-specific standard. App. to Pet. for Cert. 527a (crediting respondents’ allegations that “the current Department of Justice has shown little interest in enforcing the” VRA (emphasis added)).
“The law requires a more impartial approach.”
In plain English, Roberts ignored the plain language of the law. The very concept of having a pretext for an administrative act is not something the Court can legitimately ask. If the law gives the Secretary wide discretion, then that is up to the Secretary to use and for no one to second guess.
“In the Census Act, Congress delegated to the Secretary of Commerce the task of conducting the decennial census “in such form and content as he may determine.” 13 U. S. C. §141(a).”
This is a very wide degree of latitude, and one would expect that various political calculations would be de rigueur. After all, the Secretary is a political appointee. And the Congress knew this when they gave him various powers. Suddenly, a couple of “conservative” justices become woke, and they question whether the Secretary used proper thought processes. So they sent this back to the Secretary for some ‘splainin’. The Thought Police have been unleashed.
In the realm of law, this is beyond stupid. Either the law gives the Secretary the authority or it doesn’t. End of discussion. And the text of the law, as quoted even by the Chief Justice, is mightily plain. The citizenship question, which has been on all but one census from 1820 to 2000, is a no-brainer. It’s OK. It’s even important, since non-citizens aren’t supposed to vote or receive public assistance.
As Thomas, Gorsuch, and Kavanaugh note, this stupidity can easily paralyze the executive branch. Every little decision can be second guessed as being improperly reasoned, and everything will grind to a halt.
Now I personally think that we’d be better off if D.C. didn’t exist, but such paralysis only works to prevent draining the Swamp. If every regulation the Trump Administration rescinds gets stalled in the Courts because someone thinks that it wasn’t reasoned properly, no regulations will ever go away. You get the picture.
Hopefully, as Thomas notes, the Court will shortly realize that it needs to correct this error. In the interim, the citizenship question lives.
We are currently forming the American Conservative Movement. If you are interested in learning more, we will be sending out information in a few weeks.
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