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Chief Justice John Roberts Becomes Supreme Court's Swingman


Chief Justice John Roberts is now the Supreme Court's swing man. In two major 5-4 decisions yesterday, he wrote for the conservatives in one and then for the liberals in the other. But as NPR legal affairs correspondent Nina Totenberg reports, it was the liberal outcome blocking the Trump administration from adding a citizenship question to the 2020 census that set President Trump off on Twitter.

NINA TOTENBERG, BYLINE: Within hours of the census decision, Trump was threatening to, quote, "delay" the census, no matter how long it takes, until the Supreme Court revisits the issue. If so, it would be the first time in history that the census has been delayed. The administration decided to add the citizenship question in 2017, disregarding the unanimous advice of Census Bureau experts. They warned that adding the question would scare off people in immigrant households, leading to a significant undercount.

The administration, however, said it needed the citizenship information for enforcement of the Voting Rights Act. That was a justification that Chief Justice Roberts just couldn't swallow. Altogether, he said, the evidence tells a story that does not match the explanation. We usually defer to such agency decisions, he said, but we are not required to exhibit such, quote, "naivete," in order to accept a contrived scenario.

DALE HO: They were willing to say that the emperor had no clothes.

TOTENBERG: The ACLU's Dale Ho was one of the lawyers challenging the citizenship question.

HO: Everyone knew that the reason that was articulated by the administration was not true. If the administration had gotten away with that, it would have effectively sent the message that the government can lie to your face, and you have no way of checking that.

TOTENBERG: Voting expert Rick Hasen picks up on that.

RICK HASEN: This was not about protecting Hispanic voting rights at all. And Roberts wouldn't close his eyes to that reality.

TOTENBERG: Republican elections expert Jason Torchinsky did see some remote possibility for the administration to delay this summer and somehow try to get the Supreme Court to revisit the citizenship question in September.

JASON TORCHINSKY: If they can find workarounds or fixes, then perhaps they can push it out and try to rescue the question.

TOTENBERG: But census experts, worried that the whole fight has jeopardized public trust in the census, warned that there simply is no time for delay. Columbia University professor Ken Prewitt, a former deputy director of the census.

KENNETH PREWITT: There's no flexibility in the schedule right now. They've cut it very close.

TOTENBERG: Not only are census forms set to begin printing on Monday, but hundreds of other parts of the process are to begin kicking in, he says. And if a citizenship question were added, many of those parts would have to be substantially adjusted. Chief Justice Roberts' other decision yesterday represented a more traditional conservative-liberal split. With new Justice Brett Kavanaugh appointed to succeed Justice Anthony Kennedy, who retired last summer, the court for the first time had a firm five votes to shut the federal courthouse door to those challenging extreme partisan gerrymandering.

Roberts didn't make any apologies for the naked political power-grabs that Republicans engaged in in North Carolina and Democrats engaged in in Maryland. But he said the Constitution doesn't say anything about eliminating partisanship from a partisan process. And he said it would be next to impossible for the courts to determine how much partisanship is too much. Experts, both Democrat and Republican, agree the decision sends a clear message. NYU law professor Richard Pildes.

RICHARD PILDES: Legislators think it's the Wild West. And they're free to rig the process to whatever extreme they want.

TOTENBERG: UCLA law professor Justin Levitt notes that other Western democracies have non-politicians draw district lines for their elections.

JUSTIN LEVITT: We are the anomaly. And other countries look at us and say, that's nuts because they recognize the inevitable tendency to abuse.

TOTENBERG: But if there's a solution to extreme partisan gerrymandering, it's not coming from the Supreme Court.

Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.