Mike Carvin Michael Carvin after arguing for the plaintiffs in King v. Burwell. March 4, 2015. (Photo: Diego M. Radzinschi / ALM)

Chief Justice John Roberts Jr.'s majority opinion in the census case has drawn sharp criticism from several veteran U.S. Supreme Court advocates, including a prominent conservative lawyer who predicted the “one-off” ruling against the Trump administration won't be taken seriously.

Jones Day partner Michael Carvin, in his typically blunt style, called the decision “one of the more illogical and internally contradictory decisions that's come out of the Supreme Court in recent years.” The 5-4 ruling on June 27 blocked the Trump administration's effort to place a citizenship question on the 2020 decennial survey.

In his opinion, Roberts said the proposed addition of a citizenship question did not violate the Constitution's enumeration clause and U.S. Commerce Secretary Wilbur Ross's decision was supported by the evidence before him. But Ross' stated reason to add the question—enforcement of the Voting Rights Act—did not match the administrative record and seemed “contrived,” Roberts said in another part of the ruling, joined by the court's liberal members.

Carvin, speaking on a Supreme Court review panel sponsored by the Heritage Foundation, said “it literally makes no sense to talk about pretext” after upholding the authority to place a citizenship question on the census.

“It was an illogical opinion which would revolutionize Administrative Procedure Act review if anyone took it seriously—which I doubt anybody will because this will be viewed as other opinions of this ilk have been viewed, as sort of a one-off that really doesn't affect cases outside of the particular context,” Carvin said.

Time will tell whether and how the Supreme Court's ruling in the census case starts cropping up in federal trial and appellate decisions.

Carvin's comments echoed the dissenting view of Justice Clarence Thomas, who said the decision, by going beyond the administrative record to evaluate pretext, “is a departure from traditional principles of administrative law. Hopefully it comes to be understood as an aberration—a ticket good for this day and this train only.”

Thomas was joined by justices Neil Gorsuch and Brett Kavanaugh. Justice Samuel Alito Jr. also dissented, arguing that the courts should have played no role in second-guessing the Commerce secretary's true motivations under the Administrative Procedure Act.

Kannon Shanmugam, chairman of the Supreme Court and appellate practice group at Paul, Weiss, Rifkind, Wharton & Garrison, was on the panel with Carvin. Shanmugam said ordinarily when courts analyze whether agency action is arbitrary and capricious, they assume rationales offered are legitimate and then proceed to assess whether the government has a reasonable explanation for its action.

Shanmugam agreed with Carvin that lower courts “will be reluctant to apply [the decision] by its terms.”

But Mayer Brown partner Andrew Pincus, who filed an amicus brief in the census case on behalf of five former Census Bureau directors, pushed back at his fellow panelists.

“The reason for the agency decision has to be the real reason,” Pincus said. “That's the transparency in the process.” The problem for the Commerce secretary was that his reason for the question wasn't the real reason, Pincus said. He added: “I think it was actually the right way to apply the Administrative Procedure Act.”

A day after the Heritage panel discussion, the Federalist Society held its Supreme Court wrap-up event with Gibson, Dunn & Crutcher partner Miguel Estrada, who also was critical of the chief justice's opinion.

The opinion, Estrada said, was “interesting and bizarre” because Roberts found that the trial judge prematurely ordered extra-record discovery but the chief justice then chose to review all of the evidence in the record, including the extra-record discovery.

“It's like saying, 'Yes, you did something wrong, but now that it's here, we'll take it,'” Estrada said.

President Donald Trump, abandoning the census citizenship question, issued an executive order July 11 instructing federal agencies to collect that information from existing federal records, a direction that observers said the agencies were already doing.

 

Read more:

'A Very Difficult Time': Challenges for Career Lawyers at Trump's DOJ

In Claiming Census Victory, Trump Nods to Alito's Dissent

Meet the 3 Judges Who've Checked Trump's Census Citizenship Question

'Regrettable.' 'First Time Ever.' 'Inventing.' How Justices Fumed Over Census Ruling

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