Emil Guillermo: Supreme Court Justice Sonia Sotomayor exposes politics of fear in Census citizenship question

Image for Emil Guillermo: Supreme Court Justice Sonia Sotomayor exposes politics of fear in Census citizenship question

I admit to having a strange pang of Filipino/Asian American pride knowing that Noel Francisco—his father a Filipino immigrant who came to America to practice medicine—was arguing before the Supreme Court of the United States as the U.S Solicitor General.

Too bad he was on the wrong side of the case against a citizenship question on the Census 2020 form.

Is this how some African Americans feel about Justice Clarence Thomas?

Thomas doesn’t say much at oral arguments. But you know his stoic presence will be felt in a Trump-branded SCOTUS World, where 5-4 decisions are becoming more frequent.

And The Donald wants the citizenship question because he sees the Census as his new xenophobic tool.

He can’t lose. If people take part in it truthfully, the fear of ICE is real. If people avoid the census, Trump’s demographic white supremacy stays intact. Accuracy be damned. Undercount assured. Minorities inch closer to becoming the majority? Not on The Donald’s watch.

That leaves us with the inevitable SCOTUS moments like we had on Tuesday, with Francisco carrying the water for Trump and his Commerce Secretary, Wilbur Ross.

Thank goodness Justice Sonia Sotomayor was there to take apart Francisco’s argument.

Anyone reading through the transcript will see Francisco was dutiful to his side.

But not necessarily to the facts.

GENERAL FRANCISCO: “In March 2018, Secretary Ross reinstated a citizenship question that has been asked as part of the census in one form or another for nearly 200 years. The district court’s invalidation –


GENERAL FRANCISCO: –of that decision was wrong for –

JUSTICE SOTOMAYOR: I’m sorry, it’s not been a part of the survey, which is where he reinstated it, since 1950. And for 65 years, every Secretary of the Department of Commerce, every statistician, including this Secretary’s statistician, recommended against adding the question. So it may be that 200 years of asking a citizenship question in other forms may be true, but not on the short survey. That’s what’s at issue here.

GENERAL FRANCISCO: Well, but, Your Honor, it has been part of the census for the better part of 200 years, initially as part of the overall census itself -¬

JUSTICE SOTOMAYOR: But don’t we put

JUSTICE SOTOMAYOR: –don’t we ask the question in context? And for 65-odd-plus years, everybody said don’t add it?

Sotomayor wasn’t giving an inch on anything.

Not on whether Ross was right to go with the citizenship question vs. a statistical model that would be even more accurate—by as much as 99.5 percent.

Nor on why a citizenship question would be better than a statistical model augmented with administrative records.

Francisco couldn’t answer that one straight. If he did, it would sound something like, “It’s best for the President’s sense of xenophobia and rooting out those dreaded illegal immigrants, drug dealers, and MS-13 types.”

Instead, Francisco said Ross thought it would be the kind of data useful in enforcing the Voting Rights Act, which sounds good but doesn’t further the Census’s main purpose of enumeration.

“This seems like he thought of something,” said Sotomayor to Francisco, imagining Ross’s thoughts. “I want to add a citizenship question. I don’t know why, but this is a solution in search of a problem. I’ve got to find a problem that fits what I want to do.”

You mean like save his cabinet post and please Trump?

Sotomayor figured that what Ross proposed would result in an error of at least 500,000 in the unreporting population. And to fix the error later would cost more than if the Census Bureau had just used the statistical model and administrative records in the first place.

Sounds like the kind of made-to-order chaos the Trump administration would love.

You can read the transcript of the oral arguments here.

There is no way after reading the transcript you come away thinking, “My, this citizenship question is such a great idea!”

Unless you see the question as the Census version of Trump’s border wall.

Sotomayor had help from Justice Elena Kagan, who provided a one-two punch. She both praised Francisco for his argument, then pointed out the weakness in Ross’s decision to use the question.

And there was my fave, Justice Stephen Breyer, a fellow Lowell High SF alum, who probed and offered a bit of levity on the kind of questions asked in the Census. Trump appointees seemed ready to defend the question. Justice Kavanaugh pointed out the UN recommends a citizenship question, but did not distinguish between its use on the long-form American Community Survey and the standard short form at issue in this case. As for Justice Gorsuch, he seemed unwilling to acknowledge that the citizenship question would result in people not finishing and filling out the actual census form. Reduced response rates? We just don’t know, he said.

Maybe if he empathized with the undocumented he’d understand.

The hearing ends with Francisco in rebuttal offering one last meek defense: if one is allowed to challenge the citizenship question, then everyone would have standing to go after any or all the questions.

Francisco even had the gall to posit a hypothetical challenge to the sex question “because it limits individuals to a binary choice.” (That added a touch of PC irony because the court decided this week to take up the issue of whether workplace discrimination laws apply to trans individuals. It’s sure to be another pendulum swing for this 5-4 court.)

Sotomayor couldn’t let Francisco get away with his argument that people could get together to “knock off any question on the census” they didn’t like.

JUSTICE SOTOMAYOR: Are you suggesting that Hispanics are boycotting the census, that -


JUSTICE SOTOMAYOR: Are you suggesting they don’t have, whether it is rational or not, that they don’t have a legitimate fear?

GENERAL FRANCISCO: Not in the slightest, Your Honor.

It was an ounce of truth from Francisco in an admission of the politics of fear at work.

It’s Trump’s raison d’etre, after all.

And it was Sotomayor who elicited it as she exposed the weak arguments for adding a citizenship question to Census 2020.

But in a Trump-branded court, the truth may not be good enough.

Image by AALDEF

Emil Guillermo is an independent journalist/commentator. Updates at Follow Emil on Twitter, and like his Facebook page.

The views expressed in his blog do not necessarily represent AALDEF’s views or policies.

Read Emil's full bio →