Blog watchers up over 24,000 now. It's hard to even read all the comments and questions, they are coming in so quickly.
The decision is affirmed in part, reversed in part, and sent back to the district court.
It is complicated, so I am figuring it out.
The majority upholds the district court's remand to the agency for further explanation of its decision.
The partial concurrence from Justice Thomas agrees with the majority that the decision is not necessarily arbitrary and capricious, and then disagrees with the majority about remanding on the view that the justification the Secretary offered for the question was pretextual. Justice Breyer's partial concurrence is the opposite: It agrees about the pretext, but would also find the justifications that were offered arbitrary and capricious.
The Chief Justice explains that, although it is fine when an agency has stated and unstated reasons for a decision -- and fine with a new administration comes in with policy preferences -- here, the only stated reason for the decision to add the citizenship question seems contrived.
From the majority opinion: "we cannot ignore the disconnect between the decision made and the explanation given.... If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case. In these unusual circumstances, the District Court was warranted in remanding to the agency, and we affirm that disposition."
More for the end of the majority opinion: "We do not hold that the agency decision here was substantively invalid. But agencies must pursue their goals reasonably. Reasoned decisionmaking under the Administrative Procedure Act calls for an explanation for agency action. What was provided here was more of a distraction."
The Court says that the secretary's decision to reinstate the citizenship question was reasonable and reasonably explained, "particularly in light of the long history of the citizenship question on the census," but on the other hand it says that it shares "the District Court's conviction that the decision to reinstate a citizenship question cannot be adequately explained in terms of DOJ's request for improved citizenship data to better enforce the" Voting Rights Act. "In these unusual circumstances," the court says, "the District Court was warranted in remanding to the agency, and we affirm that disposition."
Alito's concurrence, which is in largest part a dissent, would hold that the question whether to include a citizenship question on the census form is committed to agency discretion by law -- that is, essentially unreviewable.
Justice Alito, in a separate opinion, sounds the alarm that the decision today gives courts too much leeway to inquire into the subjective motivations of agency officials who make controversial decisions.
Although the Court sends the case back to the agency, it largely rejects the substantive objections New York raised regarding the agency's power to include a citizenship question. So the remand may prove to be a temporary, and limited, victory.
Thomas concurs in part and dissents in part, in an opinion joined by Gorsuch and Kavanaugh. Says "our only role in this case is to decide whether the Secretary complied with the law and gave a reasoned explanation for his decision. The Court correctly answers these questions in the affirmative. That ought to end our inquiry."
Justice Alito expresses the view that courts have no business "stick[ing] its nose into the question whether it is good polity to include a citizenship question on the census or whether the reasons given by Secretary Ross for that decision were is only reasons or his real reasons."
Here's how I would characterize the bottom line on the census: The Court has rejected the proposition that it is impossible for Commerce to add a citizenship question, but it has also held that it does not believe the voting-rights related justification that Commerce offered. That means Commerce could get another chance to justify its decision. Whether it has the time to do that is a practical question, not a legal one.
Roberts is still reading from his opinion. I don't think anyone else will read, so hopefully we will learn Murphy's fate after that.
In rulings that favor the Government, the Court holds: (1) the Enumeration clause permits a citizenship question; (2) the Secretary's decision is reviewable under the APA; (3) adding the citizenship question was supported by substantial evidence; (4) adding the question did not violate the two provisions of the Census Act New York has cited.
This is really an administrative-law holding. The Court is saying that the Commerce Department could do this if it gave a better/truer explanation of why it was doing it.
Commerce's further explanation / rethinking of its Citizenship Question decision has to come from the agency itself, not just a brief in a court. That's going to take some time, presumably. But Commerce might also have been planning for something like this in advance...
Justice Thomas, dissenting from the decision to remand to the agency, criticizes the Court for "engag[ing] in an unauthorized inquiry into evidence not properly before [the Court] to reach an unsupported conclusion."
Going back in to see if we get something in Murphy.
Importantly, I think, there's no discussion here about the equal protection claim that the Maryland court has recently decided to hear evidence on after the new information came to light from a districting expert's hard drives following his death. That is also going to cause a hold up on this issue.
The Chief has just announced that Carpenter v. Murphy will be restored to the calendar for reargument next term.
He also announced that we will indeed get more orders tomorrow at 9:30 am.
Unlike the Administrative Procedure Act claim at issue here, the Equal Protection claim is not entirely dependent on what Commerce says in its explanation. So that decision process can potentially start without waiting for what Commerce does on remand. But because Commerce is acting and could theoretically withdraw its decision, the Maryland court could easily hold that the case is either stayed or has to be dismissed until its again clear what Commerce is going to do.
Justice Breyer, joined by the other liberal Justices, explains the reasons for his dissent from parts of the Chief Justice's opinion: "I agree with the Court that the Secretary of Commerce provided a pretextual reason for placing a question about citizenship on the short-form census questionnaire and that a remand to the agency is appropriate on that ground. But I write separately because I also believe that the Secretary’s decision to add the citizenship question was arbitrary and capricious and therefore violated the Administrative Procedure Act (APA)."
The only "unanimous" portions of the Census case relate to Parts I and II. Part I is essentially the factual background; Part II holds that the Court has jurisdiction to decide the case. The opinion is not unanimous in any other respect.
Unexpected turn in Carpenter, to say the least.
Okay, I'm going to get to work here, but hopefully everyone else will stick around and continue to provide their terrific commentary. Thanks so much for joining us. We hope to see at least some of you tomorrow morning, starting around 9 am, as we await the final set of orders, including perhaps action (finally!) on the government's DACA petitions. If I don't "see" you tomorrow, have a great summer!
Join me and Tom Goldstein tomorrow at 1:30 for a Webinar with CaseText, discussing the big decisions of the Term.
Potentially important line from the majority decision in the census case: "Relatedly, a court may not set aside an agency’s policymaking decision solely because it might have been influenced by political considerations or prompted by an Administration’s priorities."
Another notable detail from the majority decision -- the Court holds that the district court should not have ordered discovery of the agency's decisionmaking when it did. Instead, the court should have just ordered the agency to supplement the record. But because the parties stipulated to the inclusion of additional evidence into the administrative record, the Court considered all the evidence (and found it didn't support the agency's explanation).
I am signing off now. Enjoyed being with you.
Hi all, we are going to shut down the live blog. We've got a lot coming today -- Amy's analyses of the three opinions, as well as online symposia on partisan gerrymandering and the census case. We are also expecting orders tomorrow. Thank you for joining!
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