1. The plaintiffs had standing because they could show harm. Thus, the Court said that the case could move to discussion of the merits.
2. The majority of the Court said that Commerce Secretary Wilbur Ross had the right to ask a citizenship question. They said, “The Secretary was required to consider the evidence and give reasons for his chosen course of action. He did so.” Justices Roberts, Thomas, Alito, Gorsuch, and Kavanaugh agreed with this position.
3. However, Roberts joined with the liberals on the Court in concluding that “we cannot ignore the disconnect between the decision made and the explanation given.” Roberts was referring to the fact that the provided rationale for adding the citizenship question was that it was requested by the Justice Department to improve enforcement of the Voting Rights Act. Roberts added that the government provided a “contrived” reason for wanting the citizenship question. “What was provided here was more of a distraction,” he wrote, concurring with the trial judge, U.S. District Judge Jesse Furman, who called Ross’s action “pretextual” and said the question was added for reasons unknown but unrelated to the VRA. Justice Roberts, Ginsburg, Breyer, Sotomayor, and Kagan agreed with this position.
4. As a result, the Court’s majority sent the case back to Judge Furman indicating that Secretary Ross needs to provide an adequate explanation for adding the citizenship question. It is now less clear what the next step will be. There are four complicating factors:

• The Census Bureau has said that it must begin printing the census survey by the end of June. Thus, there is no time for the Commerce Department to “cure” the problem.

• President Trump tweeted that he has asked government lawyers about delaying the decennial census, presumably to provide enough time to provide the “cure.” However, the Census Act says that the census must be conducted “as of the first day of April” every ten years. Thus, a delay would violate the statute.

• Now that the case has been sent back to the lower court, new evidence will be discussed showing communication between government officials and those arguing that the citizenship question was needed for Republican partisan and discriminatory purposes. This will complicate the government’s ability to explain why they wanted the citizenship question in the first place.

• While this is happening another case dealing with the citizenship question, in the Maryland district court, may have implications. In that case, the Appeals Court sent the case back to the trial judge to consider new evidence that directly affects the plaintiffs claim of conspiracy and intent to discriminate. This relates to information found on the computer drives of Republican gerrymandering strategist Thomas Hofeller, including a document noting that adding a citizenship question to the census “would be advantageous to Republicans and non-Hispanic whites.” If Judge George Hazel rules that the government violated constitutional protections, then the Supreme Court will need to consider that argument too. The current Supreme Court decision focused on Administrative Procedure Act claims, not constitutional discrimination claims.

• Yesterday, Judge Hazel gave the government until July 1 to confirm it will not try to add the citizenship question. If he doesn’t receive that confirmation, the Judge will proceed with consideration of the constitutional discrimination claim. That will take up significant time and meanwhile the citizenship question will be on hold.