[EL] John Roberts and the Census Decision

[Pildes, Rick]

John Roberts fully understood, I believe, that his decision in the Census case would almost certainly be the end of the line for the citizenship question.

The Solicitor General represented to the Supreme Court -- at least six times -- that for all practical purposes the forms had to be finalized by the end of June (Hansi Lo Wang collects these representations here<https://twitter.com/hansilowang?lang=en>).  These representations undoubtedly reflected inter-agency discussions between the Solicitor General’s Office, the Census Bureau and the Commerce Department, informed by discussions with the only printer capable of doing the job.  For the SG to make these representations, repeatedly, is a serious matter.  In addition, the District Court had also found, as a factual matter, the same thing regarding the date that the SG represented to the Supreme Court.

Given all this, the Court would have acted on the understanding that the end of June was it.  And even if Roberts thought there might be a little play in the joints on that, any rushed-out second attempt by the administration in the week or so after the Court’s decision would not likely have been treated as credible by the courts and would have been invalidated as still infected with the original pretextual purpose.  I suspect the lawyers in the administration told the policy people exactly that, if we learn the underlying story at some point.  The only possible way the administration would have had a chance at getting a second attempt sustained would have been after a lengthy deliberative process, with a thorough analysis that explained away the first attempt, credibly, and provided a well-justified new explanation.  There was not going to be time for a process like that to be undertaken and completed.

That’s why my belief (my speculation) is that Roberts understood his decision meant there would not be a citizenship question on the Census.  Maybe he was not 100% certain of that, but I would guess 90% or so.
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