APRIL 23, 2019

APRIL 23, 2019

The GOP Justices: Republicans First, White Guys Second, Constitutionalists Third. The Supreme Court heard oral arguments today on the constitutionality of President Trump’s Commerce Department adding a question on citizenship status to the 2020 census, and it looked like the five Republican pooh-bahs (Justices Roberts, Thomas, Alito, Gorsuch, and Kavanaugh) are poised to give it a thumbs-up.

What this means is that the census—for which the Constitution mandates “counting the whole number of persons in each state”—will likely produce what the Census Bureau calculated to be a 5.1 percent undercount of noncitizen households, as respondents understandably spooked by Trump’s war on immigrants decide not to return their forms. And what that means, of course, is an undercount of immigrants—disproportionately Latino, Asian, or African, and thus disproportionately Democrat—and an overrepresentation of whites, disproportionately Republican.

Opponents of adding the question have argued that it would violate the Constitution’s mandate by leading to that undercount, and that it also would violate the federal law requiring the commerce secretary (in whose department the Census Bureau is housed) to report all additional questions to Congress three years before the date of the census, which Commerce Secretary Wilbur Ross clearly didn’t do.

Three of the Republican stalwarts—Alito, Thomas, and Gorsuch—had already made clear in earlier actions that they favored including the question on the census. In today’s hearing, Kavanaugh made that clear as well, and Roberts, the only potential swing voter on the Court, also indicated by his questioning that he’s inclined to back the question’s inclusion.

If Roberts does indeed side with his four Republican colleagues, the ruling would be the third in a series of landmark 5-to-4 Roberts Court decisions whose chief purpose is to cement Republican control of federal and state governments. The first such ruling, the 2013 Shelby County decision, effectively neutered the 1965 Voting Rights Act, thereby permitting Republican state governments to toss minority voters off the rolls and make it difficult for them to register. Absent Shelby County, Democrat Stacey Abrams, not Republican Brian Kemp, would almost surely be the governor of Georgia today.

The second such decision was the 5-to-4 ruling in last year’s Janus case, in which the five GOP justices decreed that employees in a unionized public-sector workplace didn’t have to pay dues to the union, though the union was still required to represent and advocate for them in collective bargaining and any grievances they had with their employer. The ruling was expected to produce a sharp drop in the membership and thus the financial and people-power resources of public-employee unions, though at least the big four public unions—AFSCME, AFT, NEA, and SEIU—have seen no such drops because their members chose to stick with them, and because they also have since recruited new members. Nonetheless, as the Republican justices were acutely aware, the public-sector unions register and mobilize more potential voters—particularly in black and Latino communities—than any other organizations, and thus play a major role in building Election Day support for Democratic candidates.

Should the Court now rule in favor of Ross’s citizenship question, that would add one more landmark ruling plainly intended to bolster Republican electoral prospects. And should the Court rule in a future case that it must keep its hands off deliberate Republican gerrymandering of districts, that would add yet one further ruling designed to enable Republicans to continue to hold power even if a majority of voters in a state or the nation vote (or try to vote) for Democrats.

If you were wondering why Trump and Mitch McConnell are determined to pack the courts, and the Court, with Republican hacks, wonder no longer.