The Census Case

May 7, 2019

Too much is happening in this world, but the census deserves discussion because it affects how we handle everything. New York Solicitor General Barbara Underwood argued in the U.S. Supreme Court that the coming census will undercount the population and do significant damage to the people of New York and elsewhere.

I sued the Census Bureau over the 1970 census and lost. So few people had sued the Bureau, that loss made me an expert. A town in Indiana gave me a first-class plane ticket to help them at trial on the same issue. Who else were they going to get?

In court, on the case I had brought, the federal judge told me I’d have to have an overwhelming case to get relief against the Census Bureau. The Justice Department Attorney in Washington, D.C., responded, under his breath, that indeed I did. I was a bit more humble.

The problem was that we were attempting to predict the effect of the Bureau’s shift from exclusive reliance on an army of census takers knocking on doors to a mailed census form for people to fill in. Although I was suing in Washington, I was working for the St. Louis Legal Aid Society. We were convinced the changes would undercount our clients, so that many of the programs they relied on would be underfunded. As Chief Justice Burger explained in another case, a public education was largely unavailable to many of our clients. Without that, the census form would be difficult to fill in, if they filled it in at all.

The Census Bureau had studied the issue, and without getting into the weeds, I knew the studies they relied on, and the strengths and weaknesses of those studies. By the time they got me to the trial in Indiana, I realized the Indiana team did not have a witness that could deal with the issue.

This time the Bureau is asking people to file their census forms online. And they are asking about citizenship. The citizenship issue runs into the words of the Constitution. Article I, section 2, written in 1787, says the people should be counted “according to their respective Numbers.” It doesn’t refer to citizens or residents. Just Numbers. The reason of course was slavery. Slaves weren’t treated as citizens. But white southerners wanted the value of their votes increased by what the Constitution called “three fifths of all other persons,” i.e., slaves. Slaves had to be counted. So, the language and the original meaning are clear that everybody, citizen and noncitizen alike had to be counted.

In this case, the Bureau opposed adding a citizenship question because it would degrade the accuracy of the population count. Their view was based on a number of studies. But Secretary Ross overruled the Bureau without the benefit of any research and in the teeth of the experts’ views.

Regardless, several conservative judges argued that what the Secretary wanted to do was common sense. Science, statistics, data, who needs it? They treated science as if it just obfuscates reality much like those people who deny the science behind climate change, or the medical science behind vaccinations, or the biology behind changes in species over time. Science is taking a beating, but we will bear the pain. And since the census is about the health of American democracy, self-government will take the licking.

Population trends don’t favor the candidates preferred by five members of the Supreme Court so they’d rather throw the lawsuits out than allow the census to reflect the changes. Chief Justice Roberts said, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” just dedicated judges. Don’t hold your breath.

— This commentary was broadcast on WAMC Northeast Report, April 30, 2019.

 


The Supremes Are Already a Partisan Court

October 30, 2018

The violence of this election season is heart-rending, outrageous and dangerous, but so many of us have been predicting and warning about I’m at a loss for words. So, instead, I’ll turn to what I had planned for today.

Chief Justice Roberts told people at the University of Minnesota that the Supreme Court will serve “one nation,” “not one party or interest.” The judicial branch, he said, “is, must be, very different” from the political branches. He commented that the justices have a century-old tradition of shaking each other’s hands before taking the bench to hear arguments. “It’s a small thing,” Roberts said, “but it is a repeated reminder that … we do not sit on opposite sides of an aisle, we do not caucus in separate rooms, we do not serve one party or one interest, we serve one nation.” In fact, this Court has already become very partisan, Roberts’ sugar-coating to the contrary notwithstanding.

The Constitution, by the way, calls them judges, not justices, perhaps because we don’t always get justice from judges. Judge Kavanaugh’s rant and assumption that the Clintons were at the base of Dr. Ford’s allegations reflected his deeply partisan career. Whatever happened between Judge Kavanaugh and Dr. Ford, assuming a Clinton conspiracy in the absence of facts is the very definition of prejudice. That’s become standard Republican behavior – if they don’t like the facts, they just claim a conspiracy. That alone makes it impossible to believe Democrats will get justice from Kavanaugh.

The problem goes much deeper. The Roberts Court has done everything possible to make sure that Republicans control government, regardless of the will of the people. Republican gerrymandering of legislative seats built large victories in the House of Representatives and many state legislatures while the voters were turning against them, thus reversing what the public voted for. That’s why they did it. But the Roberts Court protects their gerrymandering.

The Roberts Court eviscerated the Voting Rights Act. Witnesses testified about continued efforts to close or move polling places, put fewer polling booths in Democratic than Republican areas and strike large numbers of legitimate but likely opposition voters from the registration rolls. The enforcement provisions of the Voting Rights Act were actively blocking those efforts. The Roberts Court turned that on its head: because those provisions of the Act had been working, they weren’t necessary any more – a non sequitur any elementary school child would have understood.

The Court stripped voting rights from people who lacked government issued photo ids despite the costs to some voters, in wages and fees, to get the documents required. States could have eased those burdens except that the point was to prevent legitimate voters from voting, to make it harder for the disabled and the poor to vote, all in the absence of any evidence of relevant voter fraud. Election specialists have pointed out in vain that mailed and computer voting present much more serious problems. But state legislatures addressed neither of those problems. They were intent, instead, on stripping rights only from voters they expected to vote for the other party.

And the Court flaunted its political partisanship in cases like Citizens United, by freeing corporations to use their enormous resources in politics, while stripping political resources from unions who represent the factory workers and other regular people who are suffering now.

There’s nothing even-handed about all that. It’s a direct attempt to take the power away from the people and hand it to Republicans, who are otherwise losing the support of the public. There’s nothing legitimate about rigging elections.

Republicans warn that Democrats, if they win, might politicize the Court. That’s a joke. Republicans have already politicized the Court. If Democrats succeed in restoring the balance, that will be a big blow for a fair court. That’s why all our votes matter.

— A version of this commentary was broadcast on WAMC Northeast Report, October 30, 2018.


The American Melting Pot

February 17, 2015

I’d like to share with you some thoughts that came out of a short piece I was asked to write about the Roberts Court. I’d like to dedicate this commentary to Yusor Abu-Salha, who spoke on NPR’s Story Corps about how wonderful the U.S. is, where people of all backgrounds share one culture, shortly before she, her husband and sister-in-law were killed in Chapel Hill because they were Muslims, and to all the others, Christian, Jewish, Muslim, and all who have been murdered or tortured because they had what bigots defined as the wrong parents or beliefs.

You might think that the melting pot is the result of a lot of individual private decisions. But you’d be mostly wrong. Actually the melting pot is the result of a series of very public decisions. We made the decision, centuries ago, to provide a public education to everyone. That put us in the forefront of the world as an educated, progressive, productive and egalitarian society. We made the decision almost two centuries ago to provide public coeducational schooling. That put us in the forefront of the world in creating decent and progressive gender relations. We made the decision long ago to provide an education to immigrant children alongside the children who had been born here. That made us one people, regardless of where we came from. And all the private decisions in the great American melting pot took place in a world defined by our public schools.

Finally in the mid-twentieth century, the U.S. Supreme Court decided that we would treat race the same way that we had treated gender, language, religion and ethnic differences – that is, we would bring everybody into the same public schools. That opened the melting pot to still more of us so that our racial divisions are less sharp than they were a century ago – nowhere close to erased, but less sharp.

Chief Justice Roberts famously wrote, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”[1] But he wrote that in connection with a decision to prevent a pair of school districts from bringing people together across racial lines. No melting goes on with Roberts at the stove.

When decisions are made that advantage the majority, Justice Scalia makes it plain he thinks that’s just normal; he sees no need to ask whether anyone was discriminating or intending to treat minorities differently.[2] But there’s no vice versa for Scalia – any decision favoring racial minorities is automatically suspect for him. Indeed, he and Thomas have described “legal protection from the injuries caused by discrimination” as “special protection” and “favored status.”[3]

In 1782, French immigrant Hector St. John de Crèvecœur, famously wrote that immigrants “melted” easily into Americans, and freed themselves from the slavery of the Old World.[4] The same year, the Founders of our country adopted our motto, e pluribus unum, Latin for out of many one. Our Founders did all they could to welcome immigrants, making e pluribus unum a reality for us. That has been our country’s glory. That welcome has peopled our continental expanse, brought to our country the most talented and driven from all parts of the world, and allowed us all to share in the benefits of each other’s talents and accomplishments. That welcome has allowed us to build a country without the hostilities that have torn and still so blatantly tear other countries apart. There is nothing more truly American than e pluribus unum. And nothing more central to the development of our great country than the melting pot, even if some of those who now lead our highest institutions can no longer see it or enjoy its savory aroma. It was left for the British writer Israel Zangwill in 1909 to put the immigrants into “the great Melting-Pot where all the races of Europe are melting and reforming!” adding, “Into the Crucible with you all! God is making the American.”[5]

The Founders worked specifically to welcome Muslim immigrants to America. They would have been proud of the Abu-Salhas and ashamed of Craig Hicks, and would join us in cherishing the diversity of people who share decent lives in America and praying for that mutual respect everywhere.

— This commentary was broadcast on WAMC Northeast Report, February 17, 2015.

[1] Parents Involved v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 748 (2007)

[2] League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 515-18 (2006) (Scalia, J., dissenting in part).

[3] Romer v. Evans, 517 U.S. 620, 645, 652-53 (1996) (Scalia, J., dissenting).

[4] Hector St. John de Crevecoeur, Letters from an American Farmer (1782).

[5] Israel Zangwill, The Melting Pot: Drama in Four Acts (1909).


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