Justice Clarence Thomas (2013). Credit: Diego M. Radzinschi / ALM

The U.S. Supreme Court's refusal to allow the Trump administration to put a citizenship question on the 2020 census drew a breadth of writing from the justices.

Chief Justice John Roberts Jr., joined by liberal colleagues, found the government's reasoning “contrived.” But the ruling still allows the U.S. Commerce Department, which oversees the census, to take another shot at arguing why the addition of the question is necessary.

Meanwhile, conservative justices, including Clarence Thomas and Samuel Alito Jr., panned a decision that they said went too far in questioning the Commerce agency and its leader Wilbur Ross. Thomas, for one, accused the court of “inventing” principles to form the basis of the majority ruling.

What follows are highlights from some of the more biting passages from the opinion in Department of Commerce v. New York.

>> Chief Justice John Roberts Jr.: “Altogether, the evidence tells a story that does not match the explanation the Secretary gave for his decision. In the secretary's telling, Commerce was simply acting on a routine data request from another agency. Yet the materials before us indicate that Commerce went to great lengths to elicit the request from DOJ (or any other willing agency). And unlike a typical case in which an agency may have both stated and unstated reasons for a decision, here the VRA enforcement rationale—the sole stated reason—seems to have been contrived.”

>> Roberts: “We do not hold that the agency decision here was substantively invalid. But agencies must pursue their goals reasonably. Reasoned decisionmaking under the Administrative Procedure Act calls for an explanation for agency action. What was provided here was more of a distraction.”

>> Justice Clarence Thomas: “For the first time ever, the court invalidates an agency action solely because it questions the sincerity of the agency's otherwise adequate rationale. Echoing the din of suspicion and distrust that seems to typify modern discourse, the court declares the secretary's memorandum 'pretextual' because, 'viewing the evidence as a whole,' his explanation that including a citizenship question on the census would help enforce the Voting Rights Act 'seems to have been contrived.' The court does not hold that the secretary merely had additional, unstated reasons for reinstating the citizenship question. Rather, it holds that the secretary's stated rationale did not factor at all into his decision.”

>> Thomas: “The court's holding reflects an unprecedented departure from our deferential review of discretionary agency decisions. And, if taken seriously as a rule of decision, this holding would transform administrative law. It is not difficult for political opponents of executive actions to generate controversy with accusations of pretext, deceit, and illicit motives. Significant policy decisions are regularly criticized as products of partisan influence, interest group pressure, corruption, and animus. Crediting these accusations on evidence as thin as the evidence here could lead judicial review of administrative proceedings to devolve into an endless morass of discovery and policy disputes not contemplated by the Administrative Procedure Act (APA).”

>> Justice Samuel Alito Jr.: “It is a sign of our time that the inclusion of a question about citizenship on the census has become a subject of bitter public controversy and has led to today's regrettable decision. While the decision to place such a question on the 2020 census questionnaire is attacked as racist, there is a broad international consensus that inquiring about citizenship on a census is not just appropriate but advisable. No one disputes that it is important to know how many inhabitants of this country are citizens. And the most direct way to gather this information is to ask for it in a census.”

>> Alito: “Throughout our nation's history, the executive branch has decided without judicial supervision or interference whether and, if so, in what form the decennial census should inquire about the citizenship of the inhabitants of this country. Whether to put a citizenship question on the 2020 census questionnaire is a question that is committed by law to the discretion of the Secretary of Commerce and is therefore exempt from APA review. The district court had the authority to decide respondents' constitutional claims, but the remainder of their complaint should have been dismissed.”

Justice Stephen Breyer testifies in 2015. Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL

Justice Stephen Breyer, joined by Justices Sonia Sotomayor, Elena Kagan and Ruth Bader Ginsburg, said the Supreme Court should have outright declared the addition of the citizenship question violated the Administrative Procedure Act.

>> Justice Stephen Breyer: “The secretary's failure to consider this evidence—that adding the question would harm the census count in the interest of obtaining less accurate citizenship data—provides a sufficient basis for setting the decision aside. But there is more. The reason that the secretary provided for needing more accurate citizenship information in the first place—to help the DOJ enforce the Voting Rights Act—is unconvincing.”

>> Breyer: “The secretary thus failed to 'articulate a satisfactory explanation' for his decision, 'failed to consider . . . important aspect[s] of the problem,' and 'offered an explanation for [his] decision that runs counter to the evidence,' all in violation of the APA. These failures, in my view, risked undermining public confidence in the integrity of our democratic system itself.”

Read more:

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Kagan Writes Stinging Dissent as Court Sidesteps Politically Rigged Election Maps

Justices, Blocking Citizenship Question on Census, Call Trump's Push 'Contrived'

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Justices, Appearing Divided, Weigh Legality of Adding Census Citizenship Question