Last July, Brett Kavanaugh was nominated to the Supreme Court by a president who’d never won a plurality of the popular vote. Over the weekend, he was confirmed to that high post by 50 senators who collectively represented just 44 percent of the U.S. population; which is to say, the minority of senators who opposed Kavanaugh’s nomination represented 38 million more Americans than the majority who installed him on the Court.
This large of a discrepancy between the percentage of senators supporting a proposal — and the percentage of Americans represented by those senators —is typical of the Trump era, but grossly atypical of the century that preceded it.
Thus, Kavanaugh, like the conservative movement more broadly, owes his grip on power to the various ways America’s political system gives disproportionate influence to white, non-urban voters. So, it’s rather fitting that Kavanaugh’s first decisive vote as a Supreme Court justice could involve helping the Trump administration further diminish the influence that nonwhite, urban voters have over the people who rule them. As Politico reports:
Justice Brett Kavanaugh’s first vote as a member of the Supreme Court could come as soon as Tuesday or Wednesday on a Trump administration request testing how much power courts should wield over top executive branch officials.
The administration has already made one unsuccessful run at the high court on the issue: It asked Justice Ruth Bader Ginsburg last week to step in to block depositions of Commerce Secretary Wilbur Ross and Justice Department civil rights chief John Gore in lawsuits challenging Ross’ decision to put a question about citizenship on the 2020 U.S. Census.
Ginsburg rebuffed the stay request, but Justice Department attorneys have indicated they plan to return to the Supreme Court with another emergency stay application within days unless they get full relief from lower courts, which seems unlikely.
Justice Department lawyers argue the depositions of Ross and Gore ordered by a federal judge in New York City constitute an unwarranted intrusion into executive authority and could prove distracting to senior officials with important duties.
This argument about the limits of executive power — layered on top of a bureaucratic controversy over the precise questions on the 2020 Census — might seem like a low-stakes, legalistic dispute. But it has the potential to remake the next decade of American politics.
Data from the decennial Census shapes the contours of political districts, and determines each state’s clout in the Electoral College. It also dictates what proportion of federal funding for schools, roads, and libraries each state is entitled to. Thus, if a Republican administration found a facially neutral way of systematically undercounting residents in Democratic-leaning areas, it could inflate red America’s (already disproportionate) influence over our political system.
And the Trump administration appeared to have found such a means last March, when it decided to add a question about citizenship status to the 2020 census. Critics argued that such a question would discourage undocumented immigrants from responding to the survey, thereby leading the government to systematically undercount them. If this analysis proved correct, there would be obvious benefits to the GOP: Most undocumented immigrants live in Democratic-leaning metropolitan areas, so the fewer of them the government counts, the greater the share of federal money and political influence that rural, Republican-leaning areas will hold.
The administration insists that this prospect played no role in its decision to add the question. Rather, Commerce Secretary Wilbur Ross testified to Congress that his bureau only began considering the citizenship question after the Department of Justice indicated that it needed such information to fully enforce the Voting Rights Act of 1965.
The idea that Jeff Sessions was desperate for new tools to deploy against southern states with racially discriminatory political practices never passed the smell test. And last month, as part of a lawsuit challenging the Census question, New York attorney general Barbara Underwood filed an internal Commerce Department memo, which revealed that the DOJ had not initiated the request for the citizenship question — but had actually resisted Commerce’s initial attempts to extract such a request from it.
This has led Underwood to seek depositions from Ross and Gore, along with other internal documents that might speak to the true motives behind the citizenship question. Such fact-finding would likely establish that Ross lied to Congress — and could prove that the administration had a discriminatory intent when it added the immigration question to the Census. If Underwood (or another attorney) were able to prove the latter to a federal court’s satisfaction, then the question could be struck down.
Some experts have argued that the citizenship question wouldn’t actually depress response rates from undocumented immigrants. But there’s reason to suspect that, at the very least, the Trump administration thinks it will.
Before adding the citizenship question, the White House had already (unsuccessfully) attempted to put a leading proponent of GOP gerrymandering (who had no experience managing a large bureaucracy) in charge of overseeing the Census, and refused to hire noncitizen Census-takers for the purpose of reaching immigrant communities. Meanwhile, Census Bureau researchers had already warned the administration that test surveys were prompting “unprecedented” levels of concern from immigrants, who feared that providing the government with information about themselves would result in their deportation. Census data cannot be legally used for immigration enforcement — but, for understandable reasons, undocumented immigrants weren’t eager to bet their capacity to live in the United States on the Trump administration’s commitment to the letter of the law.
What’s more, even if the citizenship question does not deter undocumented participation, the GOP could still use its findings to diminish nonwhite voting power. The judiciary has long insisted that U.S. House districts must be drawn on the basis of total population — not total voters — so that children, prisoners, undocumented immigrants, and others who lack access to the ballot are provided with indirect representation. But some conservative groups have mulled drawing state and local districts on the basis of eligible voters (ostensibly, so as to minimize the influence that godless city slickers wield over state capitols). In 2016, the Supreme Court indicated that it might approve of such a practice. But without Census data on citizens and noncitizens, red states would have no means of giving voters-only districting a try.
By the end of this week, Brett Kavanaugh could ensure that red states have such information after 2020.