Noah Feldman writes:

Chief Justice John Roberts split the baby — again. In a dramatic and complicated opinion in a much watched census case, he first held that the Trump administration’s decision to add a citizenship question to the 2020 census was constitutionally and statutorily permissible and was supported by sufficient evidence. He was joined by the U.S. Supreme Court’s other conservatives.

Then Roberts switched course. In a separate part of his opinion, in which he was joined by only the court’s four liberals, Roberts held that Secretary of Commerce Wilbur Ross had not given his true reasons for wanting to ask about citizenship on the census, but had instead given a “pretext” — lawyer-speak for a lie. In this part of the decision, Roberts upheld U.S. District Judge Jesse Furman’s decision to send the census case back to the Commerce Department to give a new (and presumably honest) explanation for its actions.

The upshot from Department of Commerce v. New York is that as of Thursday we don’t know for sure whether President Donald Trump’s administration will be able to get the citizenship question onto the census.

On the one hand, the case is now back in Furman’s courtroom, where he will have to judge the legitimacy of some new explanation to be given by the Commerce Department. That will take time — maybe too much time for the department to be able to print the necessary forms. The department has said the printing must begin Monday. That means there’s at least some reason to think the 2020 census might happen without a citizenship question.

On the other hand, Roberts gave the Commerce Department an extremely clear road map to explain what it should say. [Continue reading…]