Adding a question about citizenship to the 2020 census would scare off millions of people from completing the form
, when his vote clinched a 5-4 majority blessing President Donald Trump’s entry ban on travellers from several Muslim countries, Justice Anthony Kennedy subtly wagged his finger in the president’s direction. Even when the judiciary grants executive officials “substantial deference”, Justice Kennedy wrote, it is an “urgent necessity” that they respect “constitutional guarantees and mandates”.
Mr Ross’s stated justification for querying citizenship, the lower courts found, was just a pretext. The rulings did not mention that in recent years conservatives have not exactly demonstrated a desire to maximise turnout from ethnic minorities at election time. Judge Jesse Furman pointed to evidence that the question would result in less accurate and less complete citizenship data than other surveys while dampening response rates disproportionately in immigrant and Hispanic households.
At the hearing, the five Republican-appointed justices, including Mr Trump’s two, sounded untroubled by Mr Ross’s rationale for amending the census form. Justice Neil Gorsuch noted that “virtually every English-speaking country and a great many others besides ask this question in their censuses.” Justice Kavanaugh added that the “United Nations recommends” asking about citizenship.
Mr Francisco gratefully received this benefit of the doubt, and tersely parried the liberal justices’ arguments. “It really does boil down”, Mr Francisco said, “to whether the secretary’s judgment here is a reasonable one.” And in weighing whether to sacrifice a decline in response rates for more citizenship data, Mr Ross “reasonably chose to go with the bird in the hand.” The oral argument suggests the five conservatives have a clear—if fraught—path to approving the question.
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