Today’s Supreme Court ruling in the gerrymandering cases was a victory for those who believe in the proper role of courts, irrespective of political outcome. It’s a refreshing change of pace from judicial supremacy. Unfortunately, what the chief justice giveth in the redistricting case, he taketh in the census citizenship case where he reaffirmed the power of the courts to get involved in every other political question and litigate it to death. His opinion in the census case will reverberate much deeper than the one in the redistricting case.
I am a conservative living in Maryland’s 3rd Congressional District, the most gerrymandered district in the country. As the entire squiggly line scheme was designed to place conservative voters at a disadvantage, I’m on the losing side of the gerrymander. Yet, I’m celebrating today’s Supreme Court ruling declining to get involved in gerrymanders from either party. Let’s leave political questions to the political branches and individualized legal questions to the courts.
As Chief Justice John Roberts rightfully wrote for the 5-4 majority in the combined redistricting cases in Rucho v. Common Cause:
Chief Justice Marshall famously wrote that it is “the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). Sometimes, however, “the law is that the judicial department has no business entertaining the claim of unlawfulness—because the question is entrusted to one of the political branches or involves no judicially enforceable rights.” Vieth v. Jubelirer, 541 U. S. 267, 277 (2004) (plurality opinion).
After reading this opinion, some of us who take the originalist approach to judicial power seriously were dancing on tables. That is … until the census case – Department of Commerce v. New York et al. – was released to the public 15 minutes later. The notion that a state can sue the federal government for asking the most important question of a census, whether one is a citizen – a question that has been asked for most of our history – is absurd. The same way Roberts ruled that deciding redistricting disputes should be nonjusticiable, he should have understood that this is just as much of a political question with no avenue for courts to get involved.
In the redistricting case, Roberts recognized the common sense that “history is not irrelevant” and that “[T]he Framers were aware of electoral districting problems and considered what to do about them,” and settled on leaving it to political bodies. Then, in the census case, while recognizing that “our interpretation of the Constitution is guided by a Government practice [asking a citizenship question] that “has been open, widespread, and un-challenged since the early days of the Republic,” he refuses to reverse the lower court’s interference with its enactment.
In a complex and defragmented plurality ruling that morphed into a unanimous order, Chief Justice Roberts helped give liberals a majority in keeping the litigation against the census question alive by remanding the case back to the courts. Meanwhile, rather than rebuking the lower courts for getting involved in a political dispute in such an unprecedented way, he legitimized much of their ruling. Moreover, with this ruling, he gave them endless ammo to shut down any common sense and lawful executive actions governing the enforcement of many critical laws, which will reverberate in other spheres of policy such as border security.
The 2010 Census under the Obama administration was the first time since 1840 that the citizenship question was not asked in any form. The same way Obama decided to extirpate it from the Census without question, Trump had the power to reinstate it, absent no formal dictates from Congress. Moreover, just like with redistricting questions, states or third-party organizations should never have standing to sue an abstract political debate about census questions. That should have been the end of the inquiry. And for the most part, it appears that this would have been the general view of Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh, possibly with slight shades of variation.
In comes Roberts and admits that nothing in the Constitution or statute could possibly preclude the secretary of commerce from adding the citizenship question. But in what has become a pernicious pattern of the courts over the past few years, Roberts decided that he didn’t like the administration’s motivation behind it and feels it requires further litigation in the district court. He didn’t even agree with the plaintiffs that the administration violated the Administrative Procedure Act (APA) by promulgating a regulation that is “arbitrary and capricious,” another favorite of the lower courts.
So, what was the beef?
According to Roberts: the decision by Secretary Wilbur Ross was “pretextual — that is, that the real reason for his decision was something other than the sole reason he put forward in his memorandum, namely enhancement of DOJ’s VRA enforcement efforts.”
As Justice Thomas said mockingly of Roberts in his partial dissent, “According to the Court, something just ‘seems’ wrong.”
An indignant Thomas wrote:
“This conclusion is extraordinary. The Court engages in an unauthorized inquiry into evidence not properly before us to reach an unsupported conclusion. Moreover, each step of the inquiry offends the presumption of regularity we owe the Executive. The judgment of the District Court should be reversed.”
Justice Alito, in a separate partial dissent, quite bluntly pointed out that the courts have no power to butt in to political decisions. Absent any constitutional violations, “To put the point bluntly, the Federal Judiciary has no authority to stick its nose into the question whether it is good policy to include a citizenship question on the census or whether the reasons given by Secretary Ross for that decision were his only reasons or his real reasons.”
In reality, 13 U.S.C. §221 states very clearly that every resident is required to answer any question under penalty of fine unless it’s a question about religion. That is the only question walled off by Congress.
While many commentators will focus on the fallout of the census issue and how the citizenship question is on hold as we get closer to the deadline, the bigger issue is much broader and will resound in every area of politics. What Roberts himself sought to do in the redistricting case, which is to get the lower courts out of the political business, he countermanded by a factor of 1,000 by allowing the courts to now question political motivations of facially lawful executive actions taken pursuant to constitutional powers.
“With today’s decision, the court has opened a Pandora’s box of pretext-based challenges in administrative law,” predicted Thomas.
Indeed, the lower courts have already mandated that Trump continue dozens of Obama policies that never existed from George Washington until Obama’s second term simply because they didn’t like his motivation. Conservatives have been frustrated with the slow pace to which the Supreme Court has been rolling back these novel and officious lower court breaches of separation of powers. Yet, this is the first time the Supreme Court itself has invalidated an administrative act as pretextual.
Where is this headed?
“Now that the court has opened up this avenue of attack, opponents of executive actions have strong incentives to craft narratives that would derail them,” bemoaned Thomas. “Moreover, even if the effort to invalidate the action is ultimately unsuccessful, the court’s decision enables partisans to use the courts to harangue executive officers through depositions, discovery, delay, and distraction. The court’s decision could even implicate separation-of-powers concerns insofar as it enables judicial interference with the enforcement of the laws.”
Boy does that ring true for enforcement of our border and immigration laws!
As Alito predicted:
If this case is taken as a model, then any one of the approximately 1,000 district court judges in this country, upon receiving information that a controversial agency decision might have been motivated by some unstated consideration, may order the questioning of Cabinet officers and other high-ranking Executive Branch officials, and the judge may then pass judgment on whether the decision was pretextual. What Bismarck is reputed to have said about laws and sausages comes to mind. And that goes for decision making by all three branches.
Viewing this entire Supreme Court term in totality, not only were the lower courts not rebuked for their unprecedented expansion of power, they are now emboldened. Every last thing this president does – no matter the common-sense rationale, no matter how lawful, not matter how rooted in law and tradition – will be permanently placed on hold. Remember, much of what the president is doing is merely reinstating base law from past lawless deviations of previous administrations.
Case in point: Obama unilaterally vetoed immigration law and gave amnesty to illegal aliens. To this day, that amnesty is still in place and the Supreme Court refuses to police the lower courts on telling Trump to keep it. Now we know why.
Just take a look at our border. We are suffering from an invasion of illegal immigration, drugs, gangs, criminals, cartels, and health concerns all because of a single California judge violating 130 years of case law on sovereignty. This is the moral hazard of judicial supremacy – the notion that, at any moment, any judge can shut down a policy as if he had a presidential veto pen and have that opinion be self-executing against legitimate powers of other branches of government.
What is clear is that on the redistricting case, Roberts felt he had nowhere to run or hide because there simply is no standard for the courts to apply to map drawing, even if they were to take over the process. Yet, in almost every other fundamental political question, he will allow the liberal judges to get involved.
When looking into the crystal ball of the future of this court, conservatives should pessimistically expect the census citizenship case to be more predictive of future outcomes than the redistricting case. As Roberts conceded at the end of the redistricting case, “In this rare circumstance, that means our duty is to say “this is not law” and not get involved. Emphasis added for “rare,” indeed!
The Trump administration lawyers are going to have to come to terms with defending the prerogatives of the executive branch of government or risking the implementation of Obama’s third, and perhaps, fourth term in office.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.