By Joel Dodge | Center for Reproductive Rights
Last week, newly discovered evidence blew up the Trump administration’s cover story in the Supreme Court for why it added a citizenship question to the 2020 census. That’s just the latest example of harmful government policies being backed up by pretextual justifications meant to obscure policymakers’ true motivations. The question remains whether courts will accept those justifications anyway.
In the census case, the administration claimed that asking about people’s citizenship status would help enforce the Voting Rights Act, which protects minorities. That was always a preposterous explanation; everyone knew that the real reason was to suppress Latino participation in the census and thereby skew congressional redistricting for partisan gain. And yet at oral argument, the Supreme Court seemed ready to accept the government’s stated rationale, with five justices appearing to side with the government.
Buying the government’s explanation for the census change became much less tenable last week. By a fortuitous chain of circumstances, previously concealed computer drives exposed the now-deceased architect of the Census citizenship question saying the quiet part loud: adding a citizenship question, he wrote, “would clearly be a disadvantage to the Democrats” and be “advantageous to Republicans and non-Hispanic Whites” in redistricting. That’s smoking-gun proof that the government’s legal justification for the citizenship question is nonsense.
We’ve seen this with other hot-button issues, from the census to abortion to immigration. For example, state legislatures commonly frame abortion restrictions as merely “protecting women’s health.” In 2013, Texas enacted two medically unnecessary TRAP laws (short for “Targeted Regulations of Abortion Providers”) that would have shut down three-quarters of its abortion clinics in the name of promoting “women’s health.”
The true motivation was transparent, however. When the bill passed the State Senate, Texas’s then-Lieutenant Governor let the mask slip by tweeting a map of the statewide clinic closures that would happen under the bill and writing: “We fought to pass [this bill] thru the Senate last night, [and] this is why!”
It’s been the same in other states. In 2012, Mississippi passed a law to shut down its last abortion clinic, telling the courts its sole purpose was to help women’s health, while its governor boasted outside of court that the “goal, of course, is to shut it down.”
In Whole Woman’s Health v. Hellerstedt (2016), the Supreme Court ruled that these types of TRAP laws unduly burden women’s constitutional right to abortion and struck down Texas’s laws. Nevertheless, Louisiana today is defending in litigation a TRAP law like Texas’s on the spurious grounds that it protects women’s health. Yet lo and behold, the Louisiana bill’s author – an activist at an anti-abortion advocacy group – was caught emailing the bill’s chief legislative sponsor explaining that the bill “follows th[e] model” of the Texas law, which had “tremendous success in closing abortion clinics and restricting abortion access in Texas.”
The Louisiana law was blocked by a federal district court, but then upheld by the Fifth Circuit Court of Appeals in flagrant defiance of the Supreme Court’s ruling in Whole Woman’s Health. The case – June Medical Services v. Gee – could now come before the Supreme Court, which must decide anew whether it will stand up for its own precedent.
There are worrying signs that the current Court is ready to swallow bad-faith justifications. Consider immigration. Last year in Trump v. Hawaii, a 5-4 majority held that the Trump administration’s Muslim travel ban was not tainted by religious animus. Yet anyone who followed Donald Trump’s campaign and presidency knew that it was – indeed, Justice Sonia Sotomayor’s dissenting opinion documented more than a dozen public statements he made concerning the ban and hostility toward Muslims.
The Supreme Court must make a choice: either accept false justifications peddled by government lawyers, or insist upon getting the truth. Respect for the truth is critical to the rule of law, and for the integrity of the Supreme Court. As the Trump administration and its state-level allies grow increasingly unmoored from any qualms about blatant dishonesty, one would hope that the courts will remain a lever of government with no tolerance for alternative facts.