A new report states that Supreme Court Chief Justice John Roberts’ deciding vote in the Supreme Court’s decision against adding a citizenship question to the 2020 census was eerily reminiscent of his 2012 deciding vote that rescued Obamacare; Roberts seemed firmly in the camp of conservatives on the court before he suddenly switched his vote to join the four liberals on the court.
CNN reports that when the justices on the court first heard arguments in the case in late April, Roberts was on the side of Commerce Secretary Wilbur Ross and the Trump administration. During oral arguments on April 23, Roberts stated, "We've had demographic questions on the census — I don't know how far back, but, certainly, it's quite common. ... Sex, age, things like that. ... Do you own your house? Do you own a radio? I mean, the questions go quite beyond how many people there are … The CVAP, Citizen Voting Age Population, is the critical element in voting rights enforcement, and this is getting citizen information."
Justice Elena Kagan insisted Ross’ reasons were "contrived," saying, "You can't read this record without sensing that this need is a contrived one." Ross had reasoned that the question was necessary in order to enforce the 1965 Voting Rights Act.
Roberts began to veer from his position.
Prior to the Supreme Court’s decision, U.S. District Court Judge Jesse Furman had ruled against Ross, writing, "[P]erhaps most egregiously, the evidence is clear that Secretary Ross's rationale 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."
After the Trump administration appealed the ruling on the basis that census forms had to be printed by the summer, the Supreme Court voted 5-4 against the Trump administration on July 27.
In the Supreme Court’s ruling, it was admitted that “The Enumeration Clause permits Congress, and by extension the Secretary, to inquire about citizenship on the census questionnaire. That conclusion follows from Congress’s broad authority over the census, as informed by long and consistent historical practice that 'has been open, widespread, and unchallenged since the early days of the Republic.'" The decision also noted, "The District Court also erred in ruling that the Secretary violated two particular provisions of the Census Act."
In his 29-page ruling, Roberts spent the first 24 pages seemingly siding with the administration; he wrote, "The Enumeration Clause of the Constitution does not provide a basis to set aside the Secretary’s decision." But in the last five pages of his ruling, he stated, "We share the District Court’s conviction that the decision to reinstate a citizenship question cannot be adequately explained in terms of DOJ’s request for improved citizenship data to better enforce the VRA. Several points, considered together, reveal a significant mismatch between the decision the Secretary made and the rationale he provided."
Meanwhile, Justice Clarence Thomas, joined by Justices Neil Gorsuch and Kavanaugh, issued a blistering dissent, writing:
For the first time ever, the Court invalidates an agency action solely because it questions the sincerity of the agency’s otherwise adequate rationale. Echoing the din of suspicion and distrust that seems to typify modern discourse, the Court declares the Secretary’s memorandum "pretextual" because, "viewing the evidence as a whole," his explanation that including a citizenship question on the census would help enforce the Voting Rights Act (VRA) "seems to have been contrived." The Court does not hold that the Secretary merely had additional, unstated reasons for reinstating the citizenship question. Rather, it holds that the Secretary’s stated rationale did not factor at all into his decision.
Thomas continued, "The Court’s holding reflects an unprecedented departure from our deferential review of discretionary agency decisions. And, if taken seriously as a rule of decision, this holding would transform administrative law." He wrote bitingly, “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 law requires a more impartial approach. Even assuming we are authorized to engage in the review undertaken by the Court—which is far from clear—we have often stated that courts reviewing agency action owe the Executive a "presumption of regularity." … The Court pays only lipservice to this principle. But, the evidence falls far short of supporting its decision. The Court, I fear, will come to regret inventing the principles it uses to achieve today’s result.
Although Roberts' decision left Ross an opportunity to come up with another rationale for adding the citizenship question, time was running out, so on July 11 Trump announced he was dropping the idea.
As Joan Biskupic, a Supreme Court biographer, has written about Roberts' switch on Obamacare:
Roberts' moves behind the scenes were as extraordinary as his ruling. He changed course multiple times. He was part of the majority of justices who initially voted in a private conference to strike down the individual insurance mandate -- the heart of the law -- but he also voted to uphold an expansion of Medicaid for people near the poverty line. Two months later, Roberts had shifted on both.