It’s Not Nice to Lie to the Supreme Court

The decision in the census case suggests President Trump can no longer take the court for granted.

A cynic might say that with his two major decisions on the last day of the Supreme Court term a week ago, Chief Justice John Roberts saved both the Republican Party and the court — first by shutting the federal courts’ door to claims of partisan gerrymandering, a practice in which both political parties indulge but that Republicans have perfected to a high art, and then by refusing to swallow the Trump administration’s dishonest rationale for adding a citizenship question to the 2020 census.

President Trump, having placed two justices on the Supreme Court, had taken to treating the court as a wholly owned subsidiary, and not without some justification. It was the court, after all, in an opinion by Chief Justice Roberts, joined by the other four Republican-appointed justices, that saved the president’s Muslim travel ban a year ago. But the chief justice’s opinion in the census case last week blew a hole in what appeared to be a protective firewall that the president can no longer take for granted.

I’m not joining the cynics, especially now that the citizenship question is dead — or so it seemed on Tuesday, based on the Justice Department’s assertion to the federal district judge handling a companion case in Maryland that the census forms were being printed without the citizenship question. On Wednesday, a furious President Trump ordered the Justice Department to reverse course; what followed was a telephone colloquy between that federal judge, George Hazel, and the lawyers for which the word bizarre is a breathtaking understatement. “I can’t possibly predict at this juncture what exactly is going to happen,” Joshua Gardner, a Justice Department lawyer, told the judge, who gave the administration until Friday afternoon to get its story straight.

It would take a heart of stone not to feel sorry for the administration’s lawyers, faced with defending the indefensible. As they recognized 24 hours earlier, the chief justice’s opinion in fact left no wiggle room. Once the behavior of Wilbur Ross, the secretary of commerce, was called out by the Supreme Court of the United States, the president was trapped — and now his lawyers are caught in his net. Maybe they can find a way around the chief justice’s decision, but I don’t think so.

Here’s why: Once the court rejected the administration’s stated rationale as phony — or “contrived,” as Chief Justice Roberts put it more politely in agreeing with Federal District Judge Jesse Furman that improved enforcement of the Voting Rights Act was not Secretary Ross’s real motive — the administration might have tried to come up with some other politically palatable explanation. That would almost certainly have failed, because courts generally will not accept what they call “post hoc rationalizations,” explanations cooked up under pressure and after the fact. But even if such a ploy had succeeded, its very success would have proved Secretary Ross to have been a liar all along.

The citizenship question is now history, fortunately, but this whole episode is too fascinating, too important for the country and the court, to put behind us just yet. So in this column, I want to probe the census decision itself, both for what it tells us about the court and for what it might suggest about the next test of the relationship between the president and the court that he has so recently regarded as his very own. That is the question of the validity of the president’s rescission of the program known as Deferred Action for Childhood Arrivals, or DACA, the Obama-era policy that now protects the “dreamers,” some 700,000 young undocumented people brought to this country as children, from being thrown out of the only country they have ever known. The court will hear that case in its next term, and there are some striking parallels with the census case that just might leave the Trump administration empty-handed again.

But first, the census case. I’ve been obsessed with imagining whatever dark night of the soul preceded the chief justice’s last-minute decision to shift course and reject the administration’s position.

I readily admit that I have no sources for the claim I just made. I have no proof that Chief Justice Roberts initially voted with the administration and talked himself out of that position sometime during the two months that elapsed between the April argument and the June decision. But I’ve been reading Supreme Court decisions for a very long time, and the opinions that provide the holding — the chief justice’s plus the partially concurring opinion of Justice Stephen Breyer for the court’s four liberals — have all the hallmarks of judicial tectonic plates that shifted late in the day to produce an outcome that none of the players anticipated at the start.

To begin with the chief justice’s opinion: The first 22 of its 28 pages are an argument for why the decision by Secretary Ross to add the citizenship question to the census was a reasonable one that fell squarely within his authority. Noting that Mr. Ross rejected the advice of Census Bureau experts and decided to proceed despite the risk of depressing the response rate, Chief Justice Roberts writes, “That decision was reasonable and reasonably explained, particularly in light of the long history of the citizenship question on the census.”

Then suddenly, on page 23, the opinion’s tone changes as the chief justice reviews the finding by Federal District Judge Furman that Secretary Ross’s explanation for why he wanted the citizenship question in the first place was a pretext. The official story was that it would help the Department of Justice — which was said to have requested the addition of the question — to better enforce the Voting Rights Act on behalf of members of minority groups. In fact, as Judge Furman determined from the evidence, it was Secretary Ross who solicited the Justice Department’s request, and whatever the secretary’s motivation, the reason he gave wasn’t the real one.

“We are presented,” Chief Justice Roberts observes dryly, “with an explanation for agency action that is incongruent with what the record reveals about the agency’s priorities and decision making process.” He continues:

“The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.”

Justice Breyer’s opinion, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, is almost as long as the chief justice’s. Nearly all of it reads like a dissent, arguing that Secretary Ross’s rejection of his own experts’ advice made the addition of the citizenship question unreasonable as a matter of law, “arbitrary and capricious” in the language of the Administrative Procedure Act. Only in Justice Breyer’s concluding paragraphs is there anything that reads like a concurrence: “I agree that the pretextual nature of the secretary’s decision provides a sufficient basis to affirm the District Court’s decision to send the matter back to the agency.” It’s hard to read these few paragraphs as anything other than a last-minute addition to a carefully crafted dissenting opinion, one that had rather suddenly become superfluous.

There were two other opinions filed in the case, one by Justice Clarence Thomas that was joined by Justices Neil Gorsuch and Brett Kavanaugh, and another by Justice Samuel Alito. Both disagreed vigorously with the chief justice’s bottom line. All four opinions scrupulously avoided any mention of what everybody knew: that documents brought to light in the weeks following the April 23 argument showed that the citizenship question was part of a plan not to help minority groups vote, but the opposite. The plan was to create and entrench Republican majorities in state legislatures by providing data for use if the Supreme Court gives the green light to counting only eligible voters in legislative redistricting. Conservative groups are poised to send such a case to the Supreme Court in the near future, part of a strategy to keep rapidly diversifying red states like Texas from turning blue.

There is no doubt that the justices were aware of this late-breaking development; during the days leading up to the decision, one of the plaintiff groups challenging the citizenship question had filed a brief with the court detailing the findings from the computer files of a recently deceased Republican redistricting specialist. If I’m right about the chief justice’s late-in-the-day change of heart, did these revelations play a part, even a subconscious one? That’s more speculation than even I am willing to engage in. Suffice it to say that it’s hard to imagine the administration’s litigating position undermined in a more devastating fashion.

It’s that observation that brings me to the DACA case. The court will actually hear three DACA cases, consolidated for a single argument and decision. All three are appeals by the administration of rulings that have barred it from carrying out its decision, announced in September 2017, to “unwind” the program. At issue are two Federal District Court opinions and a decision by the United States Court of Appeals for the Ninth Circuit that upheld a ruling by a federal district judge in San Francisco, William Alsup. The opinions differ slightly, but all found that the administration’s termination of DACA for the reason the administration has provided would violate the Administrative Procedure Act.

Here’s where the administration is caught. Its stated reason, as expressed by the acting secretary of homeland security on orders from the attorney general at the time, Jeff Sessions, was that DACA lacked statutory authority and was unconstitutional. At the heart of the administration’s appeal is the assertion that the federal courts lack jurisdiction to interfere with the “Executive Branch’s authority to revoke a discretionary policy of nonenforcement that is sanctioning an ongoing violation of federal immigration law by nearly 700,000 aliens.”

That is a very difficult position for the administration to maintain because it presents to the courts a question not of policy but of law. The administration would have a strong case for judicial deference if it described its rejection of DACA as a matter of enforcement priorities that differ from those of the previous administration. But by claiming that “the law is making us do it,” the administration is serving up the federal judges a question at the heart of their jurisdiction: What does the law require?

As Judge John D. Bates of the Federal District Court in Washington observed in his opinion, the administration provided only a few sentences of legal analysis to back up its claim. “This scant legal reasoning was insufficient to satisfy the department’s obligation to explain its departure from its prior stated view that DACA was lawful,” Judge Bates explained.

So the question is why the administration failed to offer a policy-based explanation, one that might well have persuaded the lower courts and eased its path to the Supreme Court. One reason might have been to protect the president, who declared shortly after his inauguration that “we are not after the dreamers, we are after the criminals” and that “the dreamers should rest easy.” The reason for going after the dreamers had therefore to be based on a claim of pure law, not a change of heart.

A more cynical explanation — and here I’ll indulge in the cynicism from which I refrained at the beginning of this column — is that in claiming that revoking the policy is required by law and not preference, the administration seeks to avoid accountability for a position that, if it were to prevail, would predictably cause economic disruption and public dismay.

Many policy positions predictably affect hundreds of thousands or millions of people; had Republicans succeeded in gutting the Affordable Care Act, for example, millions of people would have been thrown back into the health care jungle. But we don’t know their names. The DACA recipients, by contrast, have names that are known, not only to the Department of Homeland Security but to their schools, their employers, their communities. One dreamer recently received a Rhodes Scholarship and will not be able to return to the United States from Oxford if the administration wins its case. Others with less exalted achievements are simply getting their degrees, holding down jobs, paying their taxes, raising some 200,000 American-born children and going about their lives in the country they regard as their own.

The dreamers will still be here next April, when the census takers come around; the Supreme Court decision will almost certainly not be issued by then. They will be counted along with the rest of us in the grand decennial enumeration that the Constitution’s framers decreed. And a year from now, we’ll know whether the court that could see through one Trump administration strategy is willing and able to do it a second time.

John Bolton’s Wars

It falls to the national security adviser to defend the incomprehensible.

It’s tempting to pity John Bolton, President Trump’s national security adviser.

Tempting because it falls to the irascible but experienced Mr. Bolton to try to explain, or even undo, the president’s more impulsive and erratic foreign policy decisions. Pity because of the mortifying contortions required.

This past week Mr. Bolton journeyed to Ankara to discuss the American role in the Syrian civil war with Turkish government officials, only to run smack into another autocrat with a short fuse, President Recep Tayyip Erdogan. The Turkish leader canceled a planned meeting with Mr. Bolton and then publicly excoriated him.

Such humiliations pale, however, when one considers the Gordian knot that Mr. Bolton went to Ankara to untangle. That is, how to stop Mr. Erdogan from slaughtering Syrian Kurdish forces, who have been essential in fighting the Islamic State, after the Americans leave northern Syria. Mr. Erdogan considers the Syrian Kurds to be terrorists aligned with those in Turkey who have been in a separatist battle with the state for about 40 years.

Mr. Bolton’s diplomatic mission was unusually tough because both Turkey and the Kurds are partners of the United States. The Syrian Kurds are formidable fighters, and the progress against ISIS that Mr. Trump touts would have been impossible without them.

The Turks, meanwhile, are NATO allies, bound to Washington in a formal defense pact. Incirlik Air Base, a major staging point for American military operations throughout the Middle East, is in southern Turkey.

Mr. Bolton, a conservative hard-liner with considerable self-regard, can be a hard person to feel sympathy toward. He has made his own serious errors, not least his aggressive support for the 2003 Iraq War, which destabilized the Middle East, and, more recently, his creation of a White House decision-making system that limits robust discussion.

He certainly knew before taking the position as Mr. Trump’s national security adviser that he would be serving a chaos-driven and temperamental master. Still, Mr. Bolton faces the unenviable challenge of regularly having to defend the indefensible or make corrections after the fact. In October, he flew to Moscow to explain to President Vladimir Putin Mr. Trump’s sudden and ill-advised decision to begin pulling out of the 1987 Intermediate-Range Nuclear Forces Treaty, negotiated by Ronald Reagan and Mikhail Gorbachev.

Mr. Bolton’s latest Middle East visit was intended to reassure anxious regional leaders that the American withdrawal from Syria would be orderly. But the mission ran aground after Mr. Bolton demanded that Turkey protect Washington’s Kurdish allies and pledged that American forces would remain in Syria until the Islamic State was defeated, which could take months or years. That seemed to contradict Mr. Trump’s pronouncement in December that the Islamic State had been defeated and all 2,000 American troops would be out of Syria within 30 days.

Cue Mr. Erdogan, who dismissed Mr. Bolton’s remarks as a “grave mistake” and said, “It is not possible for us to swallow the message Bolton gave from Israel.” A pro-government newspaper went so far as to accuse Mr. Bolton of being part of a “soft coup against Trump.”

When the Tide Comes In

In January of 1959, The Mercury had run an editorial “revealing” a Jewish conspiracy of world conquest along the lines of The Protocols of the Elders of Zion.

Buckley was under pressure from backers of NR and others to publicly rebuke and denounce The Mercury. But some on the NR board worried that it would cost the fledgling magazine many of its subscribers. One board member, Mrs. A. E. Bonbrake, whom Judis describes as “a Forest Hills housewife whom Buckley had promoted to the board as a representative grass-roots activist,” asked, “Since when is it the job of National Review to attack supposedly anti-Semitic publications?”

(More about that “supposedly” later.)

“But Buckley felt hypocritical at remaining silent,” Judis recounts. “He wrote Bonbrake, “I do not feel comfortable criticizing Liberals . . . for not disavowing objectionable Liberals, when I do not myself [disavow objectionable conservatives].”

Buckley first settled for a compromise: National Review’s editors would not write for The Mercury nor would National Review publish anyone associated with it. If you were on their masthead, you couldn’t be on ours. Remember, The Mercury had long been a respected publication on the right, and many of the writers at National Review had cut their teeth writing for it. Many were on both mastheads, in one capacity or another. No longer. You can be with us or with them, but not both. All but one writer sided with National Review.

.. In January of 1959, The Mercury had run an editorial “revealing” a Jewish conspiracy of world conquest along the lines of The Protocols of the Elders of Zion.

Buckley was under pressure from backers of NR and others to publicly rebuke and denounce The Mercury. But some on the NR board worried that it would cost the fledgling magazine many of its subscribers. One board member, Mrs. A. E. Bonbrake, whom Judis describes as “a Forest Hills housewife whom Buckley had promoted to the board as a representative grass-roots activist,” asked, “Since when is it the job of National Review to attack supposedly anti-Semitic publications?”

(More about that “supposedly” later.)

“But Buckley felt hypocritical at remaining silent,” Judis recounts. “He wrote Bonbrake, “I do not feel comfortable criticizing Liberals . . . for not disavowing objectionable Liberals, when I do not myself [disavow objectionable conservatives].”

Buckley first settled for a compromise: National Review’s editors would not write for The Mercury nor would National Review publish anyone associated with it. If you were on their masthead, you couldn’t be on ours. Remember, The Mercury had long been a respected publication on the right, and many of the writers at National Review had cut their teeth writing for it. Many were on both mastheads, in one capacity or another. No longer. You can be with us or with them, but not both. All but one writer sided with National Review.

.. What bothers me is how high these bucks had to go before anyone thought, “Maybe it should stop with me?”

..  the “I’d rather be a Russian than a Democrat” swag among supposed “America First” “nationalists,” Laura Ingraham’s nativist remarks the other night, and this sort of nonsense from Jeanine Pirro.

..  As institutions lose their hold on us, we put our faith in celebrities.

.. Fame becomes its own defense, and instead of invoking principles to stigmatize and shun the irresponsible famous, we yoke convenient principles to the cause of rationalizing our feelings. The round peg of the First Amendment is crammed into square holes. Populist and anti-elitist boilerplate is slapped together to protect the indefensible from criticism. So-and-so has an “authentic constituency,” “Who are you to say what is a legitimate point of view?” “Who put you in charge of policing speech?”

.. There was no legitimate defense of The Mercury against the charge of anti-Semitism. But by saying it was only “supposedly” anti-Semitic, Mrs. Bonbrake was really saying, “I choose not to care about the true or the good; instead I will let evil thrive, sheltered by a benefit of the doubt both unearned and unwanted by the rightly accused.”

.. I am not a huge fan of the argument that says, “The only cure for bad speech is more speech.” But if that argument is to mean anything at all, it must be applied seriously. In other words, if you want to defend the speech of Alex Jones or the bigots swarming out of the swamps, you cannot then denounce, belittle, or mock the exercise of anyone’s right to condemn that speech.

.. When it falls to a bunch of giant corporations — or the federal government — to decide what speech is permissible, it is usually a sign that the rest of civil society has failed to do its job. It is axiomatic that in a free society with a limited government, customs and norms should be strong and robust.

.. The same goes for cynical psychopaths such as Alex Jones. It was outrageous for Donald Trump to go on his show and praise him.
.. My objection is that she has been a guest on Alex Jones’s Infowars.
.. Oh, and if you think such niceties are unnecessary today because “winning” is the highest principle in an existential war with “the libs,” bear in mind that Buckley, Chambers, Burnham, and the other happy few conservatives at NR were far more outnumbered in 1955, and that the institutional forces arrayed against them were far more daunting, than anything conservatives face today. And yet Buckley understood, as he put it in Up from Liberalism, that “conservatism must be wiped clean of the parasitic cant that defaces it.”
.. Cultures are shaped by incentives. The GOP has been grievously wounded and deformed by the refusal of conservatives, in and out of elective office, to lay down the correct incentives. By refusing to defend conservative dogma against “supposedly” racist and nativist forces, our dogma is being erased like the battlements of a sand castle when the tide comes in.