Althouse

"Recently, though, some Afro-Latinos have argued that Latinos have reinforced it. There are Black Latinos and white Latinos, who each experience the world differently. [Nancy López, an Afro-Dominican sociologist at the University of New Mexico] has argued that Latinos’ different experiences stem from their 'street race,' meaning how they are perceived when they walk down the street.... 'Now we’re just gonna mix race, ethnicity, and origin, everything,' she told me. 'It’s all the same. We’re all the same color. No, that’s not the reality. And to say otherwise is to eradicate our ability to document inequities based on what you look like.'... [I]t is hard to imagine what the shared racial characteristics of Latinos are. Proponents of the combined question say that the experience of anti-Latino discrimination defines Latinos as a race. This seems to grant too much power to non-Latinos to define who Latinos are, and doesn’t acknowledge how Latinos, even if they are racialized, are racialized differently depending on factors such as skin color and class background...."

".... and instructed the government to compile citizenship data from existing federal records, a significant retreat in the president’s wider crackdown on undocumented immigration.... The new approach, which appears to have been available to the Trump administration all along, could provide a clearer picture of how many people living in the United States are citizens without distorting census participation. But some Democrats complained on Thursday that the public debate itself might have sown fear among immigrants in the country and could taint their view of the census, even if it does not include the question about citizenship."

The NYT reports.

"... as his administration faced a midafternoon court deadline to say how it planned to move forward.... Mr. Trump said he was considering four or five options about how to add a citizenship question to the 2020 census after the Supreme Court ruled that the administration’s rationale for creating such a question was 'contrived.' ... 'We’ll see what happens,' Mr. Trump said on Friday. 'We could also add an addition on. So we could start the printing now and maybe do an addendum after we get a positive decision. So we’re working on a lot of things including an executive order.... I have a lot of respect for Justice Roberts, but he didn’t like it... But he did say come back — essentially he said come back.'"

The NYT reports.

"... and said it was hunting for a way to restore the question on orders from President Trump. Officials told a federal judge in Maryland that they thought there would be a way to still add the question, despite printing deadlines, and that they would ask the Supreme Court to send the case to district court with instructions to remedy the situation. President Trump had been frustrated with Commerce Secretary Wilbur Ross for mishandling the White House’s effort to add a citizenship question to the 2020 census, according to an administration official, and [tweeted] on Wednesday... 'The News Reports about the Department of Commerce dropping its quest to put the Citizenship Question on the Census is incorrect or, to state it differently, FAKE!... We are absolutely moving forward, as we must, because of the importance of the answer to this question.'"

The NYT reports.

"... abandoning its quest to add the query after being blocked last week by the Supreme Court... It was also a remarkable retreat for an administration that typically digs into such fights.... It was unclear what prompted the administration to walk away from its effort. Word of the action came in a one-sentence email from the Justice Department to lawyers for plaintiffs in a New York lawsuit that sought to block the question’s inclusion in the head count. The email offered no explanation...."

The NYT reports.

It's not that hard to figure out. It wasn't worth the political ugliness, and they could easily have lost the second-time around through the courts.

"... in which THOMAS, ALITO, GORSUCH, and KAVANAUGH, JJ., joined; with respect to Part IV–A, in which THOMAS, GINSBURG, BREYER, SOTOMAYOR, KAGAN, and KAVANAUGH, JJ., joined; and with respect to Part V, in which GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. THOMAS, J., filed an opinion concurring in part and dissenting in part, in which GORSUCH and KAVANAUGH, JJ., joined. BREYER, J., filed an opinion concurring in part and dissenting in part, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed an opinion concurring in part and dissenting in part."

That's the line-up on Department of Commerce v. New York, a case that promises to be difficult to read. But the easy take away is that the Court was unanimous. Unlike the non-unanimous case I just spent an hour and a half writing about, it doesn't do something big, clear, and final. It's all fractured. And I need a break.

So let me just dish up Amy Howe's "Opinion analysis: Court orders do-over on citizenship question in census case." Excerpt:

Although the Trump administration had hoped that the Supreme Court would clear the way for [the census] to include [a citizenship question], the justices instead sent the issue back to the Department of Commerce. Chief Justice John Roberts joined the court’s four liberal justices in ruling that the justification that the government offered at the time for including the citizenship question was just a pretext. The decision left open the possibility that the Trump administration could try again to add the citizenship question, but the clock is ticking....

In an opinion by Chief Justice John Roberts, the court today explained that... it was reasonable for [Secretary of Commerce Wilbur] Ross to decide to use the citizenship question instead of the administrative records. And it was also reasonable for him to decide that it would be worth it to include the citizenship question even though it might result in a lower response rate from households with residents who are not U.S. citizens.

But the district court had also ruled that Ross’ rationale for including the citizenship question – that the Department of Justice had asked for the data to better enforce federal voting-rights laws – was a pretext for its actual reasoning, and here the court agreed. “The evidence showed,” Roberts wrote, that Ross “was determined to reinstate a citizenship question from the time he entered office; instructed his staff to make it happen; waited while Commerce officials explored whether another agency would request census-based citizenship data; subsequently contacted the Attorney General himself to ask if DOJ would make the request; and adopted the Voting Rights Act rationale late in the process.”...

Justice Clarence Thomas filed an opinion concurring in part and dissenting in part. In his view, the Supreme Court’s “only role in this case is to decide whether the Secretary complied with the law and gave a reasoned explanation for his decision.” Because the “Court correctly answers these questions in the affirmative,” Thomas argued, that “ought to end our inquiry.”

The court’s four liberal justices joined Roberts in agreeing to send the case back to the Department of Commerce, but Justice Stephen Breyer also filed an opinion that was joined by Justice Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. They maintained that, even if Ross’ decision to add the citizenship question wasn’t pretextual, it still violated the federal laws governing administrative agencies because he decided to ask the question even though all of the evidence “indicated that asking the question would produce citizenship data that is less accurate, not more.”

Justice Samuel Alito also filed an opinion concurring in part and dissenting in part...” He would have ruled that the decision to add the citizenship question to the census fell within the discretion of the Department of Commerce and could not be challenged at all.

She says, in "Who Cares About the Supreme Court’s ‘Legitimacy’?" (NYT).

“There’s a wooing going on,” David French warned in National Review in March under the headline “The Temptation of John Roberts.” His focus was not the census case but abortion and the Mueller report. “According to this construct,” Mr. French wrote, “it’s Roberts the ideologue who would vote to restrict abortion rights. It’s Roberts the conservative who would back the Trump administration. But a chief justice who cared about the institution of the Supreme Court? Well, he guards Roe. He checks Trump.”

In The Wall Street Journal last month, under the headline “John Roberts’s ‘Illegitimate’ Court,” the newspaper’s editorial columnist, William McGurn, wrote: “For those not fluent in modern Beltway, let us translate: It’s a threat, aimed at John Roberts. If the chief justice does not produce the desired progressive outcome, the Roberts court will find itself attacked as institutionally illegitimate.” This week, The Journal’s editorial board took aim at the new development in the census case under the headline “Census Target: John Roberts.” “Whenever you read ‘legitimacy’ in a sentence about the court, you know it’s a political missile aimed directly at Chief Justice John Roberts.”...

[T]he steady flow of right-wing commentary mocking concerns about the Supreme Court’s legitimacy (and I readily admit to having added my voice to those concerns) leaves me with this thought: What about the other justices? Why is it assumed on the right that Chief Justice Roberts is the only conservative on the court who has its welfare in view and who worries about the loss of public confidence if the justices come to be seen as mere politicians in robes?

Maybe the question answers itself....

No, the question shouts out, I'm not the question!

And the "right-wing commentary" is not "mocking concerns about the Supreme Court’s legitimacy." Everyone on the Court is concerned about its "legitimacy," a concept that includes, among other things, a lot of fretting about whether the Court will be perceived as deserving the power it wields, which is, ironically, a very political concern.

"Legitimacy" is a category of rhetoric, and everyone uses it. The most frustrating thing for liberals is that non-lawyer people tend to think that the conservative approach to constitutional interpretation is the right way to do it and that the liberals seem to want to use the courts as an alternative to the legislative process.

The wooing of Chief Justice Roberts that Greenhouse quotes is an effort to get the legitimacy talk working in the liberal direction. It's not a new subject. It's a big, long, old conversation.

"We have no role to play no matter how extreme?" Justice Breyer questioned the Solicitor General, who was defending the decision to put a question about citizenship on the 2020 census. (Here's the pdf of the oral argument.)

I couldn't find a story about the argument on the front page of the nytimes.com. I had to do a search, and I came up with this snippet:

The Supreme Court’s conservative majority seems poised to allow the Trump administration to add a question on citizenship to the 2020 census. Adding the question, government experts said, could depress participation in the census (about 6.5 million people might not be counted) and affect how congressional seats are allocated. 

Ah, that links to the Adam Liptak report on the argument. Here. Excerpt:

The case, the latest test of executive power in the Trump era, was heard by the court against the backdrop of the administration’s aggressive efforts to reduce illegal immigration as well as accusations of bad faith against the architect of the revised census questionnaire, Commerce Secretary Wilbur Ross....

The court’s decision, expected in late June, will be consequential. By one government estimate, about 6.5 million people might not be counted if the citizenship question is allowed. That could reduce Democratic representation when congressional districts are allocated in 2021 and affect how hundreds of billions of dollars in federal spending are distributed. Courts have also found that Arizona, California, Florida, Illinois, New York and Texas could risk losing seats in the House, and that several states could lose federal money....

Justice Neil M. Gorsuch noted that questions about citizenship had been asked on many census forms over the years and are commonplace around the world.... Justice Brett M. Kavanaugh also discussed international trends. “The United Nations recommends that countries ask a citizenship question on the census,” he said. “And a number of other countries do it. Spain, Germany, Canada, Australia, Ireland and Mexico ask a citizenship question.”...

Dale E. Ho, a lawyer with the American Civil Liberties Union, said the citizenship question would do more than suppress the response rate. It would also introduce inaccuracies, he said. “The evidence shows,” he said, “that noncitizens respond to the question inaccurately one-third of the time.”

The more liberal justices said that was a reason to defer to expert statisticians in the Census Bureau who opposed adding the question.... 

Robert Barnes reports at WaPo.

The census hasn’t asked the question of each household since 1950, and a federal judge last month stopped the Commerce Department from adding it to the upcoming count. He questioned the motives of Commerce Secretary Wilbur Ross, and said the secretary broke a “veritable smorgasbord” of federal rules by overriding the advice of career officials.

Those opposed to the question argue the census response rate will likely fall if households are asked whether undocumented immigrants are present, and make less accurate the once-a-decade “actual Enumeration” of the population required by the Constitution....

The case is Department of Commerce v. New York. New York said in its brief:

The enumeration affects the apportionment of representatives to Congress among the states, the allocation of electors to the electoral college, the division of congressional districts within each state, the apportionment of state and local legislative seats, and the distribution of hundreds of billions of dollars of federal funding....

For at least the last forty years, the [Census] bureau has vigorously opposed adding any such question based on its concern that doing so ‘will inevitably jeopardize the overall accuracy of the population count’ by depressing response rates from certain populations, including noncitizens and immigrants....

"... a court spokeswoman said. Ginsburg, 85, participated in a private conference with her colleagues as they considered which cases to accept for review or reject, said court spokeswoman Kathleen Arberg. One item on the agenda was whether the court should skip its normal procedures and consider whether the Trump administration may add a question about citizenship to the 2020 Census form sent to every household in the country."

WaPo reports.