https://www.wsj.com/articles/the-contradictions-of-john-roberts-11561676526
Chief Justice John Roberts is the Supreme Court’s new swing vote, and he’s proving he won’t be pinned down by the law or judicial philosophy. His decision to join the four liberal Justices on Thursday to block a citizenship question on the Census is wrong on the merits and threatens larger damage to the Constitution’s separation of powers.
The question in Department of Commerce v. New York was whether Commerce Secretary Wilbur Ross acted within his purview in reinstating a citizenship question on the 2020 Census. That’s not the question the Court ended up deciding. Instead, the Chief held that although Mr. Ross acted lawfully, his motives appear to have been less than pure.
Congress has delegated to the Commerce Secretary broad discretion to conduct the Census “in such form and content as he may determine.” It’s indisputable that Mr. Ross had the legal authority to add the citizenship question. But Democratic states argued that he violated the Administrative Procedure Act by overruling Census Bureau bureaucrats who claimed the question could reduce response rates.
According to the states, a citizenship question could result in a population undercount that would reduce their federal funding and representation in Congress. They also claimed the question was motivated by racial animus toward Hispanics and intended to help Republicans gerrymander. There was scant evidence for either claim.
In a memo explaining his decision, Mr. Ross noted that the Justice Department had requested that the Secretary reinstate the citizenship question to gather more granular data to enforce the Voting Rights Act. The data could be useful in reviewing the make-up of majority-minority districts in which a majority of voters are members of a racial or ethnic minority.
