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Without RBG, Sotomayor Is Lone Dissenter as SCOTUS Allows Trump Admin to Halt Census: This Is ‘Not a Cost Worth Paying…’


The Supreme Court of the United States granted an emergency stay on Tuesday, siding with the Trump administration and allowing it to halt collection of census data now instead of at the end of October.

SCOTUS’s ruling set aside a federal court order that found Commerce Secretary Wilbur Ross should not have changed plans to stop field operations at the end of September rather than on Oct. 31. That October 31 deadline was one the Census Bureau itself had, at one time, selected in response to the significant operational disruptions caused by the COVID–19 pandemic.

In April 2020, the Census Bureau extended the deadline to collect data from the usual July 31, 2020 to October 31, 2020. Federal law requires the Census Bureau to deliver the results of the Census to the president by December 31, 2020. The Bureau extended that deadline to April 30, 2021. As Justice Sonia Sotomayor would later point out, “President Trump did not initially object, publicly stating that ‘I don’t know that you even have to ask [Congress]. This is called an act of God. This is called a situation that has to be.’” Whether asking had been necessary or not, the House of Representatives passed a bill extending the deadline in July.

Shortly thereafter, in early August, however, President Trump announced that he would exclude undocumented immigrants from the count for purposes of congressional representation. Then, under a new plan – called the “Replan Schedule,” data collection would instead end on September 30, 2020.

Several advocacy groups, cities, counties, and Native tribes, banded together and sued, seeking to the Replan Schedule from going into effect – and to reinstate the October 31, 2020 deadline. The plaintiffs were successful at the lower court level, but Tuesday’s SCOTUS ruling now reverses in favor of the Trump administration.

The high court’s emergency stay, granted by Justice Elena Kagan without comment or opinion, is another ruling handed down as part of what’s increasingly referred to as the Supreme Court’s’ “shadow docket.”

Justice Sotomayor, however, spoke up in the form of a scathing seven-page dissent. The justice had some harsh words for the Trump administration – and for her fellow justices who voted to enable its efforts to halt the Census.

Justice Sotomayor explained the government’s rationale – that if data collection is allowed to continue to October 31, the Census Bureau won’t have enough time to report the results of the census to the president by the deadline two months later. She wasn’t buying either the accuracy or the logic of the administration’s position.

“Only recently have officials begun to claim that the Bureau might yet be able to meet the statutory deadline,” the justice remarked, “and even then, their story keeps changing.” According to Sotomayor, the government’s “ever-changing projections” make its argument about potential harm “at best uncertain, and, more likely, nonexistent.”

The justice ended her dissent with pragmatism: it’s better to slow down and get it right. Reasoning that “meeting the deadline at the expense of the accuracy of the census is not a cost worth paying,” Sotomayor criticized the majority for granting relief in a case with “painfully disproportionate balance of harms.”

Sotomayor also accused the Trump administration of attempting to “downplay [the] risk by asserting that over 99 percent of households in 49 States are already accounted for,” when the reality is that “even a fraction of a percent of the Nation’s 140 million households amounts to hundreds of thousands of people left uncounted.”

“And significantly,” Sotomayor continued, “the percentage of nonresponses is likely much higher among marginalized populations and in hard-to-count areas, such as rural and tribal lands.” Those populations, she explained, “will disproportionately bear the burden of any inaccuracies.”

Sotomayor continued to do a bit of a side-by-side, making the point that she wouldn’t expect the Trump administration to be nearly as thorough as the Obama administration had been on the Census:

It is thus unsurprising that, for the 2010 census, the Bureau continued its field operations for a full month after reaching the 99 percent threshold that the Government now deems good enough.

The harm is “irreparable,” warned Sotomayor, “And respondents will suffer their lasting impact for at least the next 10 years.”

Justice Sotomayor’s status as lone dissenter wasn’t lost on court-watchers.

The ruling comes on the second day of Circuit Judge Amy Coney Barrett’s confirmation hearings to succeed the late Justice Ruth Bader Ginsburg on the Supreme Court.

[Photo by Allison Shelley/Getty Images]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos