One of the many bad side effects of Brett Kavanaugh’s snarling, sniveling, full-on-partisan campaign to squeeze himself onto the Supreme Court is that Neil Gorsuch is now being retroactively treated as unobjectionable. Sure, Gorsuch is lifelong Republican footsoldier who was installed for life in a stolen seat through a campaign driven by the secret orders of a single anonymous ultra-wealthy person, and sure he sneered and stonewalled his way through his own hearings, but he didn’t yell at anybody, and nobody said he was a drunk or an attempted rapist.
So if everyone pretends Gorsuch is OK, then there’s only one completely illegitimate justice on the Supreme Court, which is almost the same as things being legitimate. If you lean the same way the floor is tilting, you can convince yourself everything is safely back at equilibrium, at least until the furniture starts sliding off.
Unfortunately, Gorsuch isn’t a mannequin in a robe, placed to add visual stability to the Court, but a now-active justice. And yesterday, he wrote a concurrence, joining with Clarence Thomas, in which he reluctantly went along with the court’s move to block a deposition of Wilbur Ross, the Secretary of Commerce, but to allow the deposition of a Justice Department official to continue. The depositions were part of the lawsuit seeking to stop the Trump Administration from adding a question about citizenship to the 2020 Census; the citizenship question was a pet project of the anti-immigrant activists in the administration, as a device to discourage noncitizens from responding.
Gorsuch wrote the concurrence to say that he would have preferred to block both depositions, because it was an improper overreach for the courts to get involved in the question of whether the Census process was being manipulated for racist purposes. “[T]he plaintiffs,” he wrote, “would suffer no hardship from being temporarily denied that which they very likely have no right to at all.”
Declaring that the plaintiffs “very likely have no right” to a remedy would be a careless act of public pre-judging, if Gorsuch cared about appearing to decide cases on their merits. But that’s not what he was put on the court to do. He was put there to exercise power, and to block other people from exercising theirs. The purpose of the concurrence is to smarmily demonstrate his refusal to listen:
Most censuses in our history have asked about citizenship, and Commerce Secretary Wilbur Ross recently decided to reinstate a citizenship question in the 2020 census, citing a statement from the Department of Justice indicating that citizenship data would help it enforce the Voting Rights Act of 1965. Normally, judicial review of an agency action like this is limited to the record the agency has compiled to support its decision.
Because Wilbur Ross publicly gave a reason for the change other than his desire to suppress Census responses, Gorsuch argues, the norms of our system forbid anyone from examining whether he may have had other, non-public reasons for the decision. (It’s not as if Ross has any history of making public statements contrary to underlying facts.)
Gorsuch’s insistence on sticking with Ross’ public rationale not only contradicts but ignores the argument in the District Court ruling that ordered Ross to testify, which said:
Indeed, the Supreme Court has long held that the [Administrative Procedure Act] requires an agency decisionmaker to “disclose the basis of its” decision, Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962) (internal quotation marks omitted), a requirement that would be for naught if the agency could conceal the actual basis for its decision
The District Court also noted that “Defendants—and Secretary Ross himself—have placed the credibility of Secretary Ross squarely at issue,” and filled a page with examples of Ross offering inconsistent accounts of how and at whose request he decided to add the citizenship question. Gorsuch waves all of it away:
Leveling an extraordinary claim of bad faith against a coordinate branch of government requires an extraordinary justification. As evidence of bad faith here, the district court cited evidence that Secretary Ross was predisposed to reinstate the citizenship question when he took office; that the Justice Department hadn’t expressed a desire for more detailed citizenship data until the Secretary solicited its views; that he overruled the objections of his agency’s career staff; and that he declined to order more testing of the question given its long history. But there’s nothing unusual about a new cabinet secretary coming to office inclined to favor a different policy direction, soliciting support from other agencies to bolster his views, disagreeing with staff, or cutting through red tape. Of course, some people may disagree with the policy and process. But until now, at least, this much has never been thought enough to justify a claim of bad faith and launch an inquisition into a cabinet secretary’s motives.
This is not a response to the evidence. It’s a National Review Online blog post. It is extraordinary to accuse the Commerce secretary of doing something extraordinary; therefore the whole thing must be out of bounds. Justice Gorsuch cannot imagine, or will not let you imagine, that anyone would manipulate our system of government in bad faith.