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David Frenchism and the Supreme Court Decision
Over at National Review, David French has this to say about the Supreme Court decision preventing the administration from asking citizenship questions on the census:
Against this legal background, I believed that — like with the travel-ban case — a chaotic process would matter less than the very broad discretion granted the president by existing law. I was wrong.
Today, Justice John Roberts joined the four more progressive judges to reach a legal conclusion (articulated in a complex series of interlocking and competing concurrences and dissents) that roughly goes as follows: Including a citizenship question in the census is not “substantively invalid.” However, the Administrative Procedure Act applies, and it is “meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public.” Since the administration’s explanation for its agency’s action was “incongruent with what the record reveals about the agency’s priorities and decision making process,” the administration failed to meet its APA obligations.
The secretary of commerce had pointed to an assertion from the Department of Justice that the question would assist in voting-rights enforcement. To put it simply, the majority did not buy that explanation, finding that it was more of a rationalization: The secretary of commerce decided to include the questions, went hunting for a reason, and eventually got the DOJ to help.
Quite frankly, this sounds about right.
I’m starting to see what Sohrab Ahmari means about “David Frenchism.”
It may be that John Roberts found against the administration because he “did not buy that explanation, finding that it was more of a rationalization.” But that’s certainly not true of “the majority” in the persons of the four liberal justices. They found against the administration because the question concerning citizenship violates their progressive political values, and they would have voted in similar fashion whatever the administration’s argument and however sound it might have been. On one side, there are four leftists justices who vote as a solid body and use every opportunity, and every vote, to push leftism as far as they possibly can without respect to legal niceties. On the other, there are five conservative justices, who to varying degrees understand what is going on, but often think through cases as though they were deciding a homeowners insurance claim rather making fundamental decisions concerning the social and political direction of the nation.
In this case, Roberts voted against the administration because, essentially, they didn’t get the paperwork right. This is French’s “chaos.” He might be right about the chaos, but so what? The question at issue is whether the nation can take account of people’s citizenship status while enumerating them for such purposes as congressional seat apportionment. Naturally, the left wants every warm body counted regardless of citizenship status, since the more bodies they can get over the border, the greater their power grows. The four liberal justices get this and will always vote against allowing citizenship questions.
Until conservatives get it, they will never understand the struggle they are in. This doesn’t mean ignoring the law. It means using some judgment concerning what is truly important with respect to the law in the context of socially significant decisions.
I’m reminded of Sgt. Warden in From Here to Eternity in the scene where Pearl Harbor is attacked, and a corporal won’t let him into the armory because he doesn’t have the proper paperwork. Justice Roberts is that corporal.
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They absolutely do. Move along .
Yes, but intellectually vapid twaddle about fundamental dishonesty only works in one direction.
One would have thought, but apparently not.
My concern, as it often is, is with the structure of government, how decisions are made and what guardrails exist for the decision-makers. Those things that protect liberty. I’m less concerned about the particular issue. The counting of illegal aliens in the census may well be a legitimate concern, but the resolving that issue must be done within the law. Roberts concluded the way the agency did this was not within the requirements of the law. It’s a reasonable conclusion and its one that, if it errs, it errs on the side of limiting government power.
By analogy, illegal searches by police often turn up very good evidence, evidence that would allow a jury to convict without thinking twice about it. Obviously, whatever crime is being prosecuted is the basis of legitimate concern. But prosecuting it must be done within the confines of the law. Ultimately, that is more important than the particular case.
It may well be true that the progressives wouldn’t trouble themselves with the broader rule of law concerns, the structural concerns about government decision-making. They just want the W on the specific issue. I’m not at all convinced that all progressives are that blind to the fact that that is a major problem. But even if they are, if you want conservatives to follow suit and also throw structural concerns, separation of powers, federalism, etc…out the window in favor of getting W’s on daily political fights – then just advocate for electing a king every 4 years. That seems to be the only thing that will fit the demands of the politically engaged public these days.
Slaves were certainly not citizens and they were counted.
Amen. You and David French said it better than I could have. It means something when office holders lie, and that can’t be tolerated, even in a situation when Bill Clinton lied under oath about sex. You can’t lie.
Was that the reason Roberts gave for his decision? He wanted to limit government power?
From The Hill:
Roberts wrote that “the decision to reinstate a citizenship question cannot be adequately explained in terms of DOJ’s [the Department of Justice’s] request for improved citizenship data to better enforce the VRA.”
“Several points, considered together, reveal a significant mismatch between the decision [Commerce Secretary Wilbur Ross] made and the rationale he provided.”
Roberts pointed to evidence showing that Ross, whose department oversees the census, intended to include a citizenship question on the census “about a week into his tenure, but it contains no hint that he was considering VRA enforcement in connection with that project.”
And he noted that the Justice Department didn’t indicate any interest in the citizenship data until contacted by Commerce officials, and that the evidence “suggests that DOJ’s interest was directed more to helping the Commerce Department than to securing the data.”
“Altogether, the evidence tells a story that does not match the explanation the secretary gave for his decision,” Roberts wrote.
“In the Secretary’s telling, Commerce was simply acting on a routine data request from another agency. Yet the materials before us indicate that Commerce went to great lengths to elicit the request from DOJ (or any other willing agency),” he continued. “And unlike a typical case in which an agency may have both stated and unstated reasons for a decision, here the VRA enforcement rationale—the sole stated reason—seems to have been contrived. We are presented, in other words, with an explanation for agency action that is incongruent with what the record reveals about the agency’s priorities and decisionmaking process.”
However, the chief justice said that the decision to add the citizenship question was not “substantively invalid.”
“But agencies must pursue their goals reasonably,” Roberts said. “What was provided here was more of a distraction.”
So it appears Roberts didn’t believe the reason given by Commerce to add citizenship question, even though he would have given his blessing had he believed them. Is Roberts calling Secretary Wilbur Ross a liar?
I don’t disagree with you about the importance of the process, though now that we have a party that typically doesn’t follow it by default while we typically do means it is not going to last forever. The point I was making is that the question itself doesn’t need a justification to be on the census. If the census were to be boiled down to the very basics of name, address, children, etc…, that question should be on there for the fundamental purpose of the census. If the process requires a justification, basically any reasonable justification offered should be accepted. The fact that our judiciary is split on this the way it is should trouble all of us.
Roberts’ justification was nothing but a rationalization.
Maybe he was lying to us about his real motives.
Was Roberts lying to us when he said aca was a tax when Congress adamently stated it was not.
Calling out an agency for inconsistencies in explaining its actions, not allowing them to get away with post hoc, disingenuous rationalizations, is a limitation on otherwise arbitrary government power. Again, reasonable minds can disagree on whether that happened here or whether it happened to such an extent that the APA was violated. I certainly think Justices Thomas, Gorsuch, Alito, and Kavanaugh are reasonable and good judges. But, Roberts erred on the side of limiting agency authority, pushing back on them. And even if you disagree, the criticism he is receiving from the right, the attitude that somehow he is betraying conservatives, or that this decision is somehow a defeat for conservatism, is unfair and innacurate.
How about we compromise and count non-citizens as 3/5 of a citizen in the census?
He wasn’t lying. His rationale is there for all to read if anyone wants to take the time to do that. It’s a “function over form argument,” and its a pretty common and sensible legal principle. The gist is this: we aren’t going to just accept Congress’s label (the form) when they take an action or make a law. After all, they could, if they wanted, hide all kinds of improper expansions of power behind inaccurate labels. If the Court cannot look at what the law is actually doing (the function) then it cannot properly assess the legality of it. So, Congress can refuse to call it a tax, but if it functions as a tax, that’s how the Court will treat it. That is, again, a conservative, power limiting principle, in the long run.
In that particular case, it happened to preserve something progressives wanted, but it was not a great progressive victory. Also keep in mind that in the Obamacare decision, the argument that it was Constitutional under the commerce clause was defeated by the majority, Roberts included. As time goes on, and progressives try to shove things through, that may prove to be a huge victory in limiting federal authority.
I don’t see this as being pro or anti conservatism. I see his decision as being anti our country. There is not a reason for judicial interference. The Constitution mandates a census. If it can be asked what race or religion or gender I am, it must be asked if I am even a citizen. If Justice Roberts can question the motive of Wilbur Ross and the Commerce Department, and not accept his statement, than I question the motives of Justice Roberts. He must also have some sinister influence attempting to keep us from knowing who is in our country. Doncha think?
The Supreme Court has always been a political institution and their rulings historically have been legally and rationally suspect (c.f. Kennedy’s “mystery of life” as a basis for abortion rights). Some conservatives have a vision of a non-political Supreme Court, living blissfully above political concerns and motivations, handing down from Olympus decisions of such manifest rationality and Constitutional support that the rest of us can do nothing but accept their obvious wisdom.
That Supreme Court never existed and never will. The guardrails of which you speak were never in place. And – given what the Court has allowed the government to get away with – the idea that disallowing a citizenship question on the census is somehow a blow for limited government is, frankly, laughable. Neither will it do anything to build any of the guardrails that aren’t there. All it does is help elect more progressives who, when they get the chance, will put in place a Supreme Court that will rubber-stamp leftist tyranny. I guess Justice Roberts can someday congratulate himself on his heroic integrity, while he is sipping his bourbon in whatever exclusive gated community he retires to, while the rest of us suffer under the tyranny he was too high-minded to do anything to stop.
No, I don’t think. The question before the court was not whether there ought to be a citizenship question – it was whether the agency acted lawfully. That question turned, as it must, on the actions and statements of the agents and agencies they work for. It is perfectly acceptable for the court to examine those things.
Here is what I think – I think that assigning, without evidence, sinister motives to judges when they issue a ruling we don’t agree with, or which produces a result we don’t like, no matter how well grounded and reasoned the opinion is, no matter how much it conforms to our general legal traditions, is, if becomes the norm, far more dangerous to the rule of law and legitimacy of government, to our country, than failing to ask a citizenship question in the census.
Just remember that Roberts isn’t the sort of man to come up with rationalizations to get to where he wants to go – unlike those reprobates in the Trump administration and their census questions. By God we’ve got to stop them!
Government should be common sense. With the massive influx of foreigners into this country since the last census. It makes more than perfect sense to have this question. To toss it out cause you devine someone is a yucky dude is insane.
It never should have ended up at the SCOTUS.
The guardrails are in place. Imperfect, of course, but certainly in place. They are in place and working every single day. The Roberts decision here proves it. I’m sorry the underlying issue didn’t go your way this time, but the guardrails are there. A number of other recent Court decisions have proved that they are there.
You can go watch the guardrails working every day in courts across the country. Every time a police officer has to get a warrant; every time an accused person is arraigned, every time an agency must provide an opportunity for notice and comment before issuing a ruling, every time the IRS is stayed from collecting a debt by the bankruptcy code, and on and on in millions of ways. Your cynicism is just not warranted. Not yet, anyway. If the politically engaged among us continue to try to cynically dispatch the system in favor of “winning” on this or that issue, it may soon be time to get worried. In the meantime, I’m going to celebrate the weakening (however slight) of federal agency power.
Yea, that’s pretty much the point I was making too.
I think it is a mistake to think of Supreme Court decisions as just like any other court decisions. That was my point in the OP when I wrote that conservatives like French think of Supreme Court decisions as though they are a homeowners insurance claim.
The guardrails of which you write are in place in lower court decisions when they deal with burglary or fire insurance – decisions of no great political import. We are all grateful for that. The Supreme Court isn’t making those decisions. Cases get to the Supreme Court because they involve foundational and even civilizational questions that are inherently political, so it’s not an accident that the Supreme Court is more politicized than your average traffic court. David French doesn’t seem to get that. The four liberal justices on the Supreme Court surely do.
And John Roberts isn’t above rationalizing to get to where he wants to go politically, as others have pointed out with respect to the ACA. What I really think happened here is that Roberts’s dignity was offended by the sloppy way the case was submitted by the Trump Administration. Rather than doing the obviously right thing from a common sense standpoint for the good of the country and our constitutional order, it was more important for him to assuage his offended pride and stick it to the Administration. He’s not a great man, he’s a small man.
And you don’t think we are there yet? I will bet that over the last 9 years the liberal block of Supremes ( Ginsburg, Sotomayor, Kagan, Breyer) voted in unison at least 95% of the time. If we are so protected by guardrails, what would happen if 4 became 5? You can talk about the cynicism of winning until we are all blue and dead and our country is a socialist junkyard of pain and misery. Principled conservatives seem to be more concerned about being correct, then about winning. Meanwhile the leftists will fight with every ill intent to hold on to what they have won and go after even more–including every court decision.
I’m not a mind reader, but it sure feels like you are right on the money here.
Alls you have to do is look at the raised hands at the last debate. It is obvious this crowd will just love principled conservatism. Like a lion loves him some gazelle.
How about assigning sinister motives to other branches of government when they take an action a) we don’t like; b) makes us uncomfortable or nervous; c) causes consternation in the community; or d) is otherwise difficult for us personally? I think so doing interferes with the orderly analysis of material – in this case legal. I think the question was actually about whether there ought to be a citizenship question. If not, I think Roberts’ opinion would have had far less snark embedded. The “acted lawfully” question would have been answered far more concretely. I think Roberts didn’t want to be the guy to let this happen. So he didn’t.
Yes, by all means, ignore the dozens of pages he wrote explaining his ruling, detailing the factors considered, laying out the various legal authorities and precedents. Make no effort to find out what his judicial philosophy is through his prior work or public speeches, etc. Do not attempt to get information about him from interviews of colleagues, friends, and family. Just assume you know his secret motives based on absolutely nothing except how you feel about the outcome of a couple of cases. That’s fair and bound to be accurate.
Thank you Gary, for being more succinct than I could be. Roberts gently but unmistakably pointed out that the 83 year old Wilbur Ross’ testimony was 180 degrees different from the written submissions accompanying his testimony – to a degree it was an insult to the Court and could not be overlooked. He did not say the question could not be on the census, he said it had to go back to the lower court and be adjudicated honestly.
Yep, Wilbur, you are one yucky dude. That the administration wishes to 1. Protect the integrity of representation distribution. 2. Preserve the value of citizenship and get some kind of metric on our invasion problem. Your yuckiness is of highest priority. To hell with the little people. We are going to kick this out and hopefully the clock will be run out for another 10 years.
Were you interested in the minority opinion written by Justice Thomas? It starts thusly:
In March 2018, the Secretary of Commerce exercised his broad discretion over the administration of the decennial census to resume a nearly unbroken practice of asking a question relating to citizenship. Our only role in this case is to decide whether the Secretary complied with the law and gave a reasoned explanation for his decision. The Court correctly answers these questions in the affirmative. That ought to end our inquiry.
He goes on from there.
I was hoping to find only Justice Thomas’ written descent, but I couldn’t, so I linked to a discussion from Breitbart that contains Roberts, Alito, and Thomas’ writing.