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KPBS Midday Edition Segments

Supreme Court Blocks Trump Administration Census Citizenship Question

 June 27, 2019 at 10:21 AM PDT

Speaker 1: 00:00 In wrapping up its latest term, the US Supreme Court ruled to block the Trump administration citizenship question on the 2020 census, at least for now, it's a case of elected officials in California. We're watching closely as the state was one of dozens that challenged the addition of the citizenship question in court. You're as attorney general Javier Bissera reacting to the ruling regardless of what the Supreme Court does, regardless of what this Trump administration continues to try to do, let's count, make sure we count you. Meanwhile, the high court also upheld partisan gerrymandering. We're going to get into both of those decisions on what they mean with Glenn Smith, a constitutional law professor at California Western School of law. Glenn, welcome back. Thank you. The ruling on the census citizenship question. Case a is a complicated one. The Supreme Court blocked the question in part because of the government's explanation for why it added the question in the first place. Can you tell us more about what the majority said and it's opinion? Speaker 2: 01:01 Yes, it is a complicated case. I had to do a chart. There's basically six issues and the different justice go different directions. Essentially what a majority of the court, and it shifted said was that just based on the normal considerations that an administrator thinks about in terms of what policy to adopt or not, this was not an irrational policy. It was acceptable, but because the sole reason given by the secretary turned out to be inconsistent with the facts and it was he, it was a pretext. He was coming up with an excuse of helping the Justice Department when in reality was motivated by something very different that it would be sent back to the lower court, which would then give the, in theory, the Census Bureau a chance to come up with a new explanation. But that's going to be very, very difficult in terms of the time constraints. Speaker 1: 01:51 So if the Supreme Court fell to the explanation from the Commerce Department was insufficient, why didn't they just vote against having the citizenship question on the census? Why kicked this back down to lower courts? Speaker 2: 02:02 Well, it's a great example of how the Supreme Court responds to lower courts. What the lower court did was it remanded as the name goes, the issue back to the census department, giving them a chance to fix the problem. That's just a standard response that courts do when they reject the decision. It's not that this decision could never be made under the right justification, but because the current justification was inadequate, it sent it back and the court agreed with that. What was inadequate about the justification yet as the court explains in great, great length and as the pages of of decisions by the District Court said, um, basically the argument made by the secretary, the justification was that the Justice Department needed data to enforce the voting rights act. But when they looked at it, voting rights act was an excuse that they tried to come up with later. Not something that was a sincere by the justice department. So bottom line, looking at a lot of facts that supreme court agreed with the lower court that the explanation was made up and not a legitimate explanation based on a real request from another department. Speaker 1: 03:14 Hmm. So the case now goes back to the lower courts. That's the southern district of New York, uh, where they will consider what plaintiffs call newly discovered evidence. Uh, so what evidence will be considered? Speaker 2: 03:26 The, uh, evidence consists of some, a memorandum from Republican operative who may have contacted the Trump administration, which may show more of the partisan justification for this decision that Republicans were trying to deliberately undercount potential democratic voters and gain political advantage. And that's somewhat been, um, emphasized by testimony to a representative Cummings, um, house committee. So there's a lot of evidence to suggest that this was a partisan political move, not any kind of legitimate policy choice within the commerce secretary's discretion. Speaker 1: 04:06 Remind us why the census is important and what the implications of the citizenship question could be for a state like California. Speaker 2: 04:14 Well, had the court gone the other way, California, like other, like New York and other states with substantial, uh, Latino and immigrant populations would have potentially lost representation in the House of Representatives or, and would have had districts drawn in a way that made it harder for Democrats to elect members to the house. So it would have made it harder to repeat what happened. Uh, in 2018, which is the house majority becoming democratic and and being the body that pushes back on the administration. Speaker 1: 04:50 And so the Census Bureau said it needed a decision by July 1st on the question in order to start printing forms. So is it clear to you whether this means there won't be time to add the question in time for the 2020 census Speaker 2: 05:03 clear? It is. This is a very strong word, but I think it's, it's very likely that this means that although there is in theory a remand to the Census Bureau to see if they can justify it. I think this train has left the station partly because the administration itself, as you said, got the Supreme Court to take this on an exceptional early review because they said there's this deadline for them to turn around and say just kidding. And then to try to come up with an explanation that somehow undoes all of these bad facts is a real tall order. Speaker 1: 05:39 The court also upheld partisan gerrymandering. What's the significance of this decision? Speaker 2: 05:44 It's a very, very significant decision. It means that the federal courts will not be a place that people who have been victimized by partisan gerrymandering, that is the majority party in a state manipulating the districts in order to give themselves more power than they ordinarily would earn politically, that the courts, federal courts are not going to be a place to go to remedy that. So it really puts the onus on Congress, states, the voters and others to try to remedy the problem of gerrymandering. The courts are not open for that business anymore. Speaker 1: 06:18 Okay, so I have to ask, can you trust a congress to do that? Wow. Speaker 2: 06:24 That's the main argument by people that think that this is an issue that courts should not have gotten out of the very strong dissent by Justice Kagan and three others saying, obviously you can't trust the political process to fix itself. And so the courts need to be an arms length, less political body to intervene in those situations and protect our voting rights. And so it's a major loss of the most, a political body. I'm not saying courts are not political, we all know they are, but they're at least institutionally set up to be able to avoid the rankest of partisan politics and to, to have them take themselves out of that. Because this is a non justiciable political question. Is, is a big loss. Speaker 1: 07:14 I've been speaking with Glen Smith, a constitutional law professor at California Western School of law. Professor Smith. Thank you very much. You're very welcome.

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The Supreme Court is forbidding President Donald Trump's administration from adding a citizenship question to the 2020 census for now. The court says the Trump administration's explanation for wanting to add the question was "more of a distraction" than an explanation.
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