Dana Milbank: Conservative justices don't think truth matters
Chief Justice John Roberts used every euphemism in the thesaurus this last week to accuse the Trump administration of lying.
“The evidence tells a story that does not match the ... explanation.”
“The sole stated reason — seems to have been contrived.”
There was “a significant mismatch between the decision ... and the rationale.”
The “explanation ... is incongruent with what the record reveals.”
The chief justice, writing for the majority in the closely watched census case, was referring to Commerce Secretary Wilbur Ross’s bald-faced lie: He testified to Congress that he added a citizenship question to the census “solely” because the Justice Department requested it to help with enforcement of the Voting Rights Act. Three separate judges found that to be false, and evidence emerging since the trials confirmed appearances: The real rationale was to reduce the power of non-white people and Democrats.
“We cannot ignore the disconnect between the decision made and the explanation given,” Roberts wrote, noting that precedent says the Supreme Court isn’t “required to exhibit a naivete from which ordinary citizens are free.” He went on: “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.”
The truth was on trial before the Supreme Court in the census case. The good news: The facts won. The bad news: It was a 5-to-4 decision.
Incredibly, Justice Samuel Alito, in a dissent, argued that it’s perfectly acceptable for the administration to lie to the courts. “The federal judiciary has no authority to stick its nose into ... whether the reasons given by Secretary Ross for that decision were his only reasons or his real reasons.” Phony reasons are welcome in Alito’s courtroom!
The victory might be temporary — Roberts essentially invited the administration to concoct a new rationale for the discriminatory census question — but in this dark moment for the truth, it’s worth celebrating even a fleeting acknowledgment from the high court that facts still matter.
Dishonesty is the coin of the realm for President Trump. Various of his former officials have been convicted of lying. Judge Amy Berman Jackson, sentencing former Trump campaign chairman Paul Manafort, nobly proclaimed that “court is one of those places where facts still matter,” but that’s not always true:
In embracing Trump’s “travel ban,” the Supreme Court accepted the administration’s pretext and determinedly ignored extensive evidence of Trump’s anti-Muslim bias.
The census was different for Roberts, who, as he has done in a few politically charged cases, sided with the court’s liberal justices in an apparent effort to protect the court’s credibility.
The Census Bureau’s own experts strongly resisted the citizenship question, saying it would suppress participation by households with noncitizens — even legal ones — by about 8% and cause a 2.2 percentage point drop-off in participation. Emails made public after the Supreme Court heard the case show that the architect of the plan saw the move as “advantageous to Republicans and non-Hispanic whites.” One of the judges who originally heard the case issued a further ruling this last week that the new evidence points to a “possible, if not likely, conclusion that the decision-makers adopted [the architect’s] discriminatory purpose.”
The chief justice, though not touching the recent evidence, argued that while courts generally don’t second-guess policymakers’ motivations, there is an exception for a “strong showing of bad faith.” Ross himself had changed his story, eventually admitting that he nudged the Justice Department to request the citizenship question — as cover for a move he had pushed from the start with White House encouragement.
The law, Roberts wrote, requires “that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise.”
Justice Clarence Thomas, joined by both Trump appointees, Justices Neil Gorsuch and Brett Kavanaugh, took a position similar to Alito’s: The truth is irrelevant. Ridiculing the majority’s view that Ross “must not be telling the truth,” Thomas protested:
“Pretext is virtually never an appropriate or relevant inquiry for a reviewing court to undertake.”
That acceptance of pretext fits Trump’s worldview. Trump tweeted after the ruling that he wants to “delay the Census, no matter how long” to get the question resolved. Who cares if the Constitution says otherwise?
The administration previously claimed the deadline to finalize the 2020 census was this month. But this, apparently, was another lie.
Follow Dana Milbank on Twitter, @Milbank.