The breakdown of which justices supported which parts of the opinion is complicated. Chief Justice Roberts wrote the court’s majority opinion. Every other justice joined the majority opinion with regard to the first two parts – which summarized the facts of the case, and determined that the parties had standing to sue. Justices Thomas, Alito, Gorsuch, and Kavanaugh join the majority opinion with regard to the decision about the authority under the Enumeration Clause and the decision that the Secretary did not act in an arbitrary and capricious manner in adding the citizenship question. Justices Breyer, Ginsburg, Kagan, and Sotomayor join the majority opinion with regard to the determination that the decision was reviewable under the Administrative Procedure Act and that the decision for the inclusion of the question by the Commerce Secretary was not related to the actual reason.
The Court’s majority opinion recapped the history of events leading up to the case, and first turned to the question of standing. The US government had argued that states had no standing to sue, because any injury they faced was the result of citizens choosing not to comply with their lawful obligations (to respond to the census). The Court determined that the states did have standing, because regardless of whether failing to reply to the census was unlawful, evidence showed that it was predictable and likely that adding the question would reduce compliance with the census count, and that would lead to a definite financial injury (loss of federal funds distributed based on population).
The Court had asked the parties to submit briefs as to the effect of the Enumeration Clause of the Constitution (the part that requires the census), and addresses this issue first. The Court states there is no limitation on the power of the Enumeration Clause with regard to this decision – the Enumeration Clause gives Congress almost unlimited authority, which it has delegated to the Department of Commerce. The Court has ruled on challenges to the census in the past based on a “reasonable relationship” standard – that is, does the issue before the court have a “reasonable relationship” to the Enumeration Clause – but those cases were ones that dealt directly with the actual count of people, such as whether sampling was appropriate. This case needed a different standard, despite the US government’s request to have the issue evaluated that way, because if the “reasonable relationship” standard were used here, virtually every question on the census would be unconstitutional because almost none relate to the actual physical counting of the population. The Court decided that, since population has been asked about on the census (even if not on the decennial census in many years) since 1820, and since lower courts have recognized the right of the Department of Commerce to seek demographic data as part of the census, the Department of Commerce is permitted to ask about citizenship on the census questionnaire. The Court’s opinion is careful to note it is not deciding on the constitutionality of any other question.
The US Government argued that the Census Act granted the Secretary of the Department of Commerce such broad authority that his discretion is unreviewable under the Administrative Procedure Act (APA) – that is, the US Government is saying that the courts have no jurisdiction to decide this issue. The Court disagreed, stating that nothing in the Census Act permits the Secretary to have such broad power, and noting that the Census Act does impose restrictions on the Secretary. The Court notes it has only refused to apply the APA in very narrow situations where there is no restriction on the authority of the agency, and thus no law to apply; here, there are restrictions on the Secretary in the Census Act, and thus the decision is reviewable.
Under the APA, courts treat agency decisions with deference, and can only change the decision of the agency if it is “arbitrary and capricious.” The Court’s opinion outlined the parameters – it had to determine if the Secretary had reviewed “relevant data,” if the Secretary gave “a satisfactory explanation” for the decision made, which had to “includ[e] a rational connection between the facts found and the choice made.” Importantly, the Court stated that it could not substitute its judgment for that of the agency if the decision was within the bounds of reasonable decision making – the agency decision did not have to be the best decision, or the one most supported by evidence – it just had to be within the bounds of reasonable decision making. The Court found that the Secretary met that burden – that the Secretary had considered the evidence both for and against including the citizenship question, and had determined the benefits of adding the question had outweighed the costs. The Court noted that, while the evidence suggested adding the question would depress turnout on the census if it was viewed in the most favorable light, the evidence was not at all conclusive. Additionally, the Court noted that the Secretary provided reasonable explanations for why the alternatives presented – such as reliance on records from other agencies – were not preferred. The Court is very clear that it cannot pass judgment on whether the agency’s decision is the best one, or better than alternatives – just that it was not arbitrary and capricious. Importantly, this does not allow for other pretextual reasons that may or may not be at play to be considered. If there is a reasonable decision made with the evidence presented, regardless of any other pretextual reasons for wanting to make the decision, the decision cannot be overturned by the courts.
The Court briefly addresses questions of whether the Secretary complied with two subparts of the Census Act, both related to extremely procedural issues – whether the Secretary had an obligation to use administrative sources for data instead of asking for it on the census, and whether the Secretary timely reported the inclusion of the question in a report to Congress – and concludes that there were no violations here.
Finally, the Court turns to the issue of whether the rationale given by the Secretary for using the citizenship question had a connection between the facts found and the decision made. The Court first notes that the decision of an agency cannot be overturned simply because there are also other reasons for making that decision, or even when the reason for that decision is political or done due to an administration’s priorities. There is a brief recap as to how the evidence which was not part of the initial record came to be before the Court, and the Court ultimately agrees that the extra evidence was appropriate. The Court states the extra evidence shows that the Secretary had not initially tied the question to enforcing the Voting Rights Act – that he first pursued other avenues unrelated to Voting Rights Act enforcement – and only later considered that avenue. The Court also noted that it was only after the Secretary contacted the Attorney General directly that the Department of Justice asked for the inclusion of the question. The Court further noted that the evidence suggested the DOJ was directed to do so, rather than actually needing the information – the request sent by the DOJ relied mostly on contributions from Department of Commerce staff and advisors – and the DOJ declined an offer by the Census Bureau to discuss other ways of obtaining the data the DOJ purportedly sought – all of which suggests to the Court that the DOJ’s involvement was pretextual.
The Court concluded that it was faced with a situation where the reason stated by the agency for its decision did not match the record and the evidence, and that reason warranted the decision to remand the case back to the lower courts (that is, send the case back down to the lower courts for further proceedings). The Court denied the lower court’s decision that the agency’s inclusion of the question was invalid on its own, but affirmed the decision of the lower court that the reasons offered by the agency were not legitimate, and called the rationale given by the agency here a “distraction.”
There are three different dissents – each is long and highly technical, so a brief summary of each is below.
Dissent by Justice Thomas, which is joined by Justices Gorsuch and Kavanaugh: The Justices concur with all of the Court’s opinion except for the part that decided that the reason given by the Secretary was pretextual and not related to the actual reason. Justice Thomas specifically thinks that the extra evidence which was permitted by the District Court and the Supreme Court was not permissible, and that evidence is what presented the information which led the Court’s majority opinion to conclude that the decision made by the Secretary was pretextual.
Dissent by Justice Breyer, which is joined by Justices Ginsburg, Sotomayor, and Kagan: The Justices concur with all of the Court’s majority opinion except for the part which determined the Secretary’s decision to use a citizenship question was not arbitrary and capricious. Justice Breyer believed that the decision made by the Secretary was too far from what the available evidence showed, and thus was outside of a reasonable decision making process. Justice Breyer also considered the size of the implications of the decision here as well. (Of note: the Court’s majority opinion believes that Justice Breyer’s dissent is wrong in that it substitutes Justice Breyer’s judgment for that of the Secretary, which is not permitted under the APA.)
Dissent by Justice Alito: Justice Alito concurs with all of the Court’s majority opinion except to the extent that the Court’s majority opinion determines the issue is reviewable under the APA. Justice Alito believes the decision of the Secretary is not subject to review under the APA at all. Justice Alito believes the language of the Census Act is sufficiently broad as to permit the Secretary unlimited discretion with regard to this type of issue, and is subject only to review by Congress (which passed the Census Act). Justice Alito further believes that actions reviewable under the APA typically have a history of being reviewed, and states that in the 200 years of the census, the courts have never been asked to review the discretion of the Secretary under the Census Act.