Multiple times during Tuesday's hearing on the Trump administration's move to add a citizenship question to the census, Gorsuch returned to vague allusions to an unsuccessful 2016 Supreme Court case that dealt with that possibility.
While the liberal justice peppered the government with questions about the plan, the conservative justices were mostly silent during arguments, in a sign the conservative majority could hold in the administration's favor in the closely watched case. Their liberal counterparts expressed hostility toward allowing the question. Letter passed on Speaker Nancy Pelosi's thanks to the court for allowing the lawmakers a rare chance to address the court directly, and Chief Justice John G. Roberts Jr. replied: "Tell her she's welcome". But his conservative allies, Justice Clarence Thomas and Justice Samuel Alito, in their respective concurrences, said that that states should be able to use whatever metric they'd like and said a separate case should decide this question on whether states have that latitude.
The administration argues that the commerce secretary has wide discretion in designing the census questionnaire and that courts should not be second-guessing his action.
Because the census is used to determine how many seats in the U.S. House of Representatives each state has and how to allocate $880 billion a year in federal funding for schools, roads and other public services, adding new questions is often politically fraught. A ruling by the Supreme Court is due by the end of June.
But on Tuesday, the conservative justices did not appear to share that concern.
The conservative majority on the U.S. Supreme Court appeared sympathetic Tuesday to Trump administration arguments calling for the addition of a citizenship question in the country's 2020 census, despite objections from big states and cities that the query would inhibit immigrants from taking part in the once-a-decade population count.
Secretary of Commerce Wilbur Ross first proposed including the question on March 26, 2018, stating it would help enforce provisions of the Voting Rights Act that protect racial and language minorities. and the Commerce Department is expected to argue it has the authority to collect citizenship data for that goal.
Liberal justices noted evidence presented by the Census Bureau's own experts that showed the citizenship question would lead to a population undercount, and, contrary to the administration's stated goal, less accurate citizenship data.
"I do not know anyone who truly believes that the Trump administration is interested in enhancing the Voting Rights Act", House Oversight Committee Chairman Elijah Cummings of Maryland said.
"There's no doubt that people will respond less", Justice Sonia Sotomayor said.
Justice Neil Gorsuch can't wait to let states exclude noncitizens from redistricting. "Why doesn't Congress prohibit the asking of the citizenship question?" They argued that the decision to add the question was "arbitrary and capricious and contrary to law", in violation of the Administrative Procedure Act. That accounts for just 2 percent of Ohio's population.
U.S. District Judge Jesse Furman of NY ruled earlier this year against the Trump administration, writing in an opinion that Ross "failed to consider several important aspects of the problem; alternately ignored, cherry-picked, or badly misconstrued the evidence in the record before him; acted irrationally both in light of that evidence and his own stated decisional criteria; and failed to justify significant departures from past policies and practices".
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