Supreme Court Appears To Favor Allowing Census Citizenship Question

RACHEL MARTIN, HOST:

Is this person a citizen of the United States? The Trump administration's decision to add that question to the census has provoked controversy as well as three lower-court decisions all against the administration and two trips to the Supreme Court - all that in just a year. Yesterday, when the case was argued before the justices, challengers were on the steps of the high court making their case publicly too. Here is Dale Ho of the ACLU.

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DALE HO: It will so severely damage the accuracy of the census that six states are at risk of losing a seat in the House of Representatives - California, Florida, Texas, Arizona, Illinois and, of course, New York.

MARTIN: NPR legal affairs correspondent Nina Totenberg reports that despite that protest, oral arguments in the Supreme Court yesterday went very well for the administration.

NINA TOTENBERG, BYLINE: The court has decided nothing yet. But yesterday, it didn't take long to figure out this likely will be a 5-to-4 decision and that the newly-constituted conservative court majority will prevail. This is one of those cases where the retirement of Justice Anthony Kennedy last term may well have been determinative. Kennedy was not a hard-line enthusiast of executive power, but the justice who replaced him, Brett Kavanaugh, is.

And though Kavanaugh's manner is always deferential, he made clear yesterday where he stood. He characterized the statute governing the census as giving the commerce secretary huge discretion. And he did something conservatives rarely do. He pointed to the United Nations and other countries as perhaps providing useful guidance. The U.N. recommends that countries ask a citizenship question when conducting a census, and many Western countries follow that advice.

New York solicitor general Barbara Underwood tried to persuade the court that all the evidence collected by the Census Bureau suggests that adding the citizenship question is counterproductive, that it leads to a serious undercount of Hispanics and other immigrant groups. But she got nowhere. The court's conservatives found the prospect of an undercount untroubling, or, alternatively, they argued with the Census Bureau's statistical methodology.

The court's liberal justices got nowhere either when they took on Trump administration solicitor general Noel Francisco. He acknowledged that adding the citizenship question might suppress participation. But he said the information gained by adding the question was valuable - worth trading, in fact, for some degree of accuracy. He even went so far as to tell the justices that if they disallow the citizenship question, they would be, quote, "effectively empowering" any group in the country to knock off any question on the census if they simply get together and boycott it.

Justice Sotomayor, the court's first and only Hispanic justice, leaned forward, her voice somewhere between a purr and a growl. General, are you suggesting that Hispanics are boycotting the census? Not in the slightest, Francisco replied blandly. But he didn't back down.

Nina Totenberg, NPR News, Washington.

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