On Thursday, the final day of the 2018 Term, the Supreme Court published its opinion in Department of Commerce v. New York, otherwise known as “the Census Case”. In yet another highly fractured opinion, the Court remanded with instructions to the district court to consider a narrower issue: whether Secretary Ross and the Commerce Department violated the Administrative Procedures Act (APA).
Chief Justice Roberts acted as the median justice, dismissing the vast bulk of the issues presented as perfectly legitimate under the Census Act, and he was joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh on this portion of the opinion. The Chief went on to find that the record developed below cast serious doubt on the integrity and motivation behind the inclusion of the citizenship question, remanding the case to the district court to complete fact finding on that issue. He was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan for this portion of the opinion.
Justice Thomas filed a dissent, joined by Justices Gorsuch and Kavanaugh, articulating a belief that the motivation of the Secretary is immaterial as there was sufficient basis within the developed record to permit the agency to proceed and to disregard allegations of other motivation. Justice Alito’s dissent focused more on the general international standards used to conduct censuses, noting that virtually all such standards and procedures inquire to some degree about citizenship, however, he too would have ended any further inquiry and permitted Commerce to proceed. Justice Breyer crafted a partial dissent joined by Justices Ginsburg, Sotomayor, and Kagan, delving into the factual inconsistencies in the Agency’s record, finding that the Secretary acted in a pretexual manner and was arbitrary and capricious.
The decision has the effect of keeping the citizenship question off of the 2020 Census form for now, at least until the district court can complete its factual development on the remanded question. Given the unusual timeline for this case and the need to have the Census completed in 2020, it is possible this issue will return to the Court next term.