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 Roberts pulls out the thesaurus for one of Trump’s nearly 11,000 lies

Chief Justice John Roberts used every euphemism in the thesaurus this week to accuse the Trump administration of lying.

“The evidence tells a story that does not match the . . . explanation.”

“The sole stated reason — seems to have been contrived.”

There was “a significant mismatch between the decision . . . and the rationale.”

The “explanation . . . is incongruent with what the record reveals.”

Furthermore, it was a “distraction” from the truth, “based on a pretextual rationale” and lacked “a rational connection between the facts found and the choice made.”

The chief justice, writing for the majority in the closely watched census case, was referring to Commerce Secretary Wilbur Ross’s baldfaced lie: He testified to Congress that he added a citizenship question to the census “solely” because the Justice Department requested it to help with enforcement of the Voting Rights Act. Three separate judges found that to be false , and evidence emerging since the trials confirmed appearances: The real rationale was to reduce the power of nonwhite people and Democrats.

“We cannot ignore the disconnect between the decision made and the explanation given,” Roberts wrote, noting that precedent says the Supreme Court isn’t “required to exhibit a naiveté from which ordinary citizens are free.” He went on: “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.”

The truth was on trial before the Supreme Court in the census case. The good news: The facts won. The bad news: It was a 5-to-4 decision.

Incredibly, Justice Samuel Alito, in a dissent, argued that it’s perfectly acceptable for the administration to lie to the courts. “The federal judiciary has no authority to stick its nose into . . . whether the reasons given by Secretary Ross for that decision were his only reasons or his real reasons.” Phony reasons are welcome in Alito’s courtroom!

The victory might be temporary — Roberts essentially invited the administration to concoct a new rationale for the discriminatory census question — but in this dark moment for the truth, it’s worth celebrating even a fleeting acknowledgment from the high court that facts still matter.

Dishonesty is the coin of the realm for President Trump, who is closing in on 11,000 falsehoods, by The Post’s tally, while various of his former officials have been convicted of lying. Trump delights his supporters by declaring unwelcome facts “fake news,” and the courts have struggled with his falsehoods. Judge Amy Berman Jackson, sentencing former Trump campaign chairman Paul Manafort, nobly proclaimed that “court is one of those places where facts still matter,” but that’s not always true: In embracing Trump’s “travel ban,” the Supreme Court accepted the administration’s pretext and determinedly ignored extensive evidence of Trump’s anti-Muslim bias.

The census was different for Roberts, who, as he has done in a few politically charged cases, sided with the court’s liberal justices in an apparent effort to protect the court’s credibility.

The Census Bureau’s own experts strongly resisted the citizenship question, saying it would suppress participation by households with noncitizens — even legal ones — by about 8 percent and cause a 2.2 percentage-point drop-off in participation. Emails made public after the Supreme Court heard the case show that the architect of the plan saw the move as “advantageous to Republicans and non-Hispanic whites.” One of the judges who originally heard the case issued a further ruling this week that the new evidence points to a “possible, if not likely, conclusion that the decision-makers adopted [the architect’s] discriminatory purpose.”

The chief justice, though not touching the recent evidence, argued that while courts generally don’t second-guess policy makers’ motivations, there is an exception for a “strong showing of bad faith.” Ross himself had changed his story , eventually admitting that he nudged the Justice Department to request the citizenship question — as cover for a move he had pushed from the start with White House encouragement.

The law, Roberts wrote, requires “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.”

Justice Clarence Thomas, joined by both Trump appointees, Justices Neil Gorsuch and Brett Kavanaugh, took a position similar to Alito’s: The truth is irrelevant. Ridiculing the majority’s view that Ross “must not be telling the truth,” Thomas protested: “Pretext is virtually never an appropriate or relevant inquiry for a reviewing court to undertake.”

That acceptance of pretext fits Trump’s worldview. Trump tweeted after the ruling that he wants to “delay the Census, no matter how long,” to get the question resolved. Who cares if the Constitution says otherwise?

The administration previously claimed the deadline to finalize the 2020 Census was this month. But this, apparently, was another lie.

Trump Ridicules Republicans

The president could pay a price for kicking the defeated members of his own party.

A question running alongside Donald Trump’s political career is whether he will ever pay a price for his verbal insults.

It was widely thought Mr. Trump might have damaged himself fatally when in mid-2015 he said of John McCain’s time as a prisoner of war in Vietnam: “He’s not a war hero. He’s a war hero because he was captured. I like people that weren’t captured.”

Brett Kavanaugh’s Expert Evasions, Learned From Past Masters

Judge Kavanaugh must have studied earlier confirmation hearings carefully, as he had absorbed all of their key lessons: Say nothing, say it at great length, and then say it again.

.. His confirmation would represent the culmination of a decades-long project of the conservative legal movement

.. Democratic senators sought assurances, for instance, that Judge Kavanaugh was not “a human torpedo being launched at the Mueller investigation,” as Sheldon Whitehouse, Democrat of Rhode Island, put it.

They wanted a promise that Judge Kavanaugh would be independent of Mr. Trump, asking him, for instance, to promise to recuse himself from cases arising from Robert S. Mueller III’s investigation of the president.

Judge Kavanaugh refused. Making such a commitment, he said, would jeopardize his judicial independence.

.. Judge Kavanaugh’s general strategy was summarized in a 1981 memorandum prepared by a young White House lawyer who had been assigned the job of preparing Justice Sandra Day O’Connor for her confirmation hearings.

.. The memo’s author was John Roberts, and he took his own advice at his 2005 confirmation hearings to become chief justice of the United States.
.. he demonstrated a seemingly complete command of Supreme Court precedent.

He was knowledgeable but not glib, effortlessly summoning the names and summarizing the details of old decisions without indicating how they would apply to new controversies.

.. Judge Kavanaugh was less sure-footed when the questions turned from the law to his own actions.

.. “The point of having public hearings is so relevant issues can be vetted, not just for the senators but for all of us. I fear that this hearing may represent a move away from that, and back to the days of confirmations as back room deals.”

.. He used a rare colorful phrase in refusing to answer questions about Mr. Trump’s attacks on the judiciary. “I’m not going to get within three ZIP codes of a political controversy here,” he said.

The Democrats made a fairly strong case that Judge Kavanaugh is very partisan and loyal to the president,” he said. “The nominee’s refusal to criticize the president in his attacks against the judicial branch didn’t help his case.

.. “Justice Ginsburg’s favored technique took the form of a pincer movement,” Justice Kagan wrote.

  • If a question was too specific, she would decline to answer on the ground that she did not want to forecast a vote.
  • If it was too general, she would say a judge should not deal in abstractions or hypothetical questions.

Professor Kagan explained what had counted as too specific: “Roughly, anything that might have some bearing on a case that might someday come before the court.” She also described what had been too general: “Roughly, anything else worthy of mention.”

.. his calculated praise for United States v. Nixon, the 1974 decision in which the Supreme Court unanimously ordered President Richard M. Nixon to comply with a trial subpoena to turn over Oval Office recordings. The decision would, of course, be the leading precedent if a dispute arising from the Mueller investigation reached the Supreme Court.

.. But Judge Kavanaugh ranked it among the Supreme Court’s greatest hits.

Those included, he said, just three others:

  1.  Brown v. Board of Education, the 1954 decision that ruled segregated public schools unconstitutional;
  2. Youngstown Sheet and Tube Company v. Sawyer, the 1952 decision rejecting President Harry S. Truman’s attempt to seize the nation’s steel mills to aid the war effort in Korea; and
  3.  Marbury v. Madison, the 1803 decision that established the basis for the Supreme Court’s power of judicial review.

.. But where Judge Kavanaugh responded to questions about Roe with equivocation, he embraced the Nixon case.

“It was one of the greatest moments because of the political pressures of the time,” he said. “The courts stood up for judicial independence in a moment of national crisis.”

Still, he drew the line at saying whether, say, a grand jury subpoena calling for Mr. Trump’s testimony should be enforced. That would, he said, require him to answer a hypothetical question.