People cannot stand and be counted if census takers ignore them. Recognizing the risk, a coalition of states, organizations and individuals came to the U.S. Supreme Court for relief. But instead of adding clarity, the nation’s final arbiter dodged the issue on Friday with a non-opinion opinion that leaves resolution of an obvious disagreement to another day.
Essentially, the high court punted. A 6-3 majority in Trump v. New York denies that a dispute even exists. Injured parties almost certainly will emerge, but the census has not yet been finalized and thus — in the most technical sense — the harm remains hypothetical.
Such unsatisfying outcomes have become increasingly common. The new ruling is just the latest in a line of decisions in which the Supreme Court avoids hard questions by invoking “standing,” “ripeness” or similar doctrines that leave conflicts to fester without addressing the underlying merits. Originally devised to keep truly advisory matters out of court — where actual, timely disputes do not exist between parties — these doctrines have continually expanded to let the high court punt, even when it is not fourth down.
In reality the census case was far more than advisory. Very real opponents disagreed with the Trump administration’s intention to exclude residents from the official tally if they were in the country illegally. An estimated 10 million people could be cut out of the process as a result, and not counting them would affect all kinds of interests.
From the number of congressmen in California to federal grants to small cities in New York state, not including those people in the census, would have all kinds of real-world consequences. In other words, the dispute over not counting these people was real. Thus, the parties suing the federal government should have had standing to sue.
But not so fast, the high court said. As of now, the Trump administration has not filled in all the details regarding how many undocumented people live in various states and localities, how many people the administration will exclude, and exactly what the impact would be. The court thus claims the case “is riddled with contingencies and speculation.”
This misses the forest for the trees. Exactly how many people the administration won’t end up counting is not known today. But what is known is that some won’t be counted — those in Immigration and Customs Enforcement detention facilities, for starters — and even a small amount of exclusion is likely to have some effect on the number of congressional districts in each state or the specifics of federal funding. Those details can’t be ruled on now, but the decision to exclude any undocumented people certainly could.
To invoke the late political pundit John McLaughlin, it is perhaps not a “metaphysical certitude” that the administration’s policies will have an effect, but it is still a “substantial risk” — a 10 out of 10 on the McLaughlin Report. As Justice Stephen Breyer points out in his dissent, joined by Justices Elena Kagan and Sonia Sotomayor, that’s all the law says that people need to get into court when they are afraid the government will harm them.
If there is a substantial risk that a law licensing something you say is going to violate your right to free speech, for example, you do not have to wait to be arrested for speaking before you sue. If a realistic likelihood exists that the government will harm you, the court should be open to your claim.
This tension about when the courthouse doors are open or closed needs clarity, and the law needs better doorstops to allow legitimate parties to resolve their disputes with the government through an independent judiciary.
The solution is not to invent something new, but to enforce the standards that already exist — most importantly the concept of “substantial risk.” In future cases, perhaps when an outgoing administration is not burning the midnight oil, the Supreme Court should live up to its purpose and protect people from harm before the damage becomes a metaphysical certainty.
Anthony Sanders is director of the Center for Judicial Engagement at the Institute for Justice.