How John Roberts might allow Trump to resurrect the census question

Despite a favorable ruling for opponents of the census citizenship question on Thursday, the Supreme Court did not definitively decide to exclude the citizenship question from the 2020 census. Indeed, I expect that the Trump administration’s Commerce Department and Department of Justice could well be back before the Supreme Court’s next term begins in October arguing for the question’s inclusion, and they could well win and include the question.

Chief Justice John Roberts wrote Thursday’s decision in Department of Commerce v. New York in a way that put him in the driver’s seat. Joined by the conservatives on the court, Roberts agreed that Commerce Secretary Wilbur Ross had broad discretion under the Constitution’s enumeration clause (which requires the counting of all people in the United States every 10 years), various acts of Congress regulating the census, and the Administrative Procedure Act to include a census question. The conservative justices, who otherwise question broad agency power (including in Wednesday’s decision in Kisor v. Wilkie) saw Ross as having essentially unfettered discretion. There are five votes for this position on the Supreme Court.

In the other part of Roberts’ opinion, joined by the court’s four liberals, Roberts agreed that the actual reason offered by Ross for including the census question was a pretext.