Keeping the citizenship question off is a wonderful ruling. I’ll tip a glass to the court, but it has to wait until later. Ironically, the gerrymandering ruling sucks, but that one really is in the hands of every voter to address. The eople DO have the power to stop that with our individual votes. (Not easy, no. But within our power.)
The people had little to control over the citizenship question, however. And keeping it off now means that a truer voice of the people will be heard, and it is this same voice that CAN control the gerrymandering shenanigans. (So it’s up to the people, that CAN work out, but it requires participation. Talk about a double edged sword!)
IANALBIALIOTI (I Am Not A Lawyer But I Act Like One On The Internet), but the way I read the decision, it broke down like this:
Did anybody have standing to challenge the question in the first place? Yes (unanimous)
Did the Secretary of Commerce have the authority to ask the question in the first place? Yes (Roberts, Kavanaugh, Gorsuch, Alito, Thomas)
Can the question’s inclusion be reviewed? Yes (everybody but Gorsuch and Alito)
Does the question violate the Census Act’s provision that it can’t be asked if the information is elsewhere available (in this case, from Department of Justice data)? No (Roberts, Kavanaugh, Gorsuch, Alito, Thomas)
Does the question violate the Census Act’s requirement that all questions must be submitted in a report to Congess at least two years in advance? No, as the Act also provides for a supplemental report that includes the question(s), which was filed (Roberts, Kavanaugh, Gorsuch, Alito, Thomas)
In light of information made available after arguments were made, does the Court have the authority to ask that the case be brought back to lower courts for possible reconsideration? Yes (Roberts, Ginsburg, Breyer, Sotomayor, Kagan).
What he said is that this can be fixed in the states or in Congress by passing laws, or conceivably by a constitutional amendment. In other words by a political process. I don’t necessarily agree with this myself, but that is the decision of the court.
It’s long been known that some things are political questions that cannot be settled by the courts. Just what those are is debatable.
Is what happened effectively that SCOTUS first said ‘yes, we are going to hear these cases’ and then said ‘we have no jurisdiction to hear these cases’?
Should be noted that they didn’t kick it off; they sent it back to the lower court for more fact-finding. It can still get on, but the effort to do so is going to start running into a time crunch.
“Jurisdiction” is a poor word to use here. The Court has subject matter jurisdiction over the general area. But the political question doctrine when applied results in the determination that the issue is non-justiciable. That is, it’s not a question of law before the court, but a question of political power. And that means it’s not really a “case or controversy”, as that terms is used in the Constitution, and cannot be heard by the federal courts.
Baker v. Carr, 369 U.S. 186 (1962) sets forth a whole list of questions to consider when determining if an issue is a non-justiciable political question.
At some point, if a non-justiciable question is presented to a court (political question, unripe question, moot question, advisory opinion, collusive suit, etc.), somewhere along the line the court system has to make that determination. Here, the determination was made finally in these cases by the Supreme Court of the United States. Since the issue had not been decided previously, it was important for the Court to grant the requested writs of certiorari so that it could reach a determination. Granting certiorari is not the same as saying, “yes, we have subject matter jurisdiction and this is justiciable.”
Do you not suppose that Roberts would be more worried about his public image if he generally made decisions influenced by cunning liberals and their tactics, than if he made those decisions based upon his knowledge of the law and interest in “getting it right”?
I’m scratching my head at what the census department has to show on remand. What if it just said that it wanted to start asking the question again so that people would get used to seeing the question so as not to be afraid of it in the future (In addition to the VRA enforcement)? Roberts’ opinion cites a litany of cases showing how deferential courts are supposed to be to agencies, but in this case because the extra discovery, which was agreed should not have been permitted anyways, showed that Ross made the decision to add the question before contacting the DOJ to request the request to add it, then that couldn’t have been the real reason. Thomas does a good job in dissent explaining which this is not necessarily so.
The rule seems to be only if you are going to tell lies, they don’t have to be good, but good enough that the judge could swallow it.
And it sets a bad precedent. If I don’t like a federal regulation, I forum shop for a judge and during the case the judge rules incorrectly on almost every point of law, but I get to go on a fishing expedition and if I catch something, anything during my improper discovery phase, I win.
So Congress could pass a law requiring districts drawn based upon no partisan considerations at all, or only allow say a 20% bump for the majority party.
Then the courts could handle these claims as that would address Roberts’ objection that under current law, partisanship is permitted in drawing districts and courts had the problem of saying what was too much partisanship.
And what about the gerrymandering vote by Roberts? Maybe the cunning left just wasn’t up to the task of cleverly getting him to vote for their side? Or what? How do you feel about that one?
I could have sworn I posted in response to this already, but the post seems to have disappeared. Maybe I never actually hit ‘submit’?
Anyway: AIUI, the census department didn’t want to ask the question in the first place. They were ordered to, over their objections, by the Secretary of Commerce; to whom the Congress some time ago delegated the power to do so.