The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Supreme Court closed out its term with a handful of decisions and a punt. In the combined partisan gerrymandering cases, the Court concluded 5-4, along traditional ideological lines, that partisan gerrymandering claims are nonjusticiable and therefore do not belong in Court. The Chief Justice wrote the majority opinion and Justice Elena Kagan dissented. The Court also refused to decide whether large portions of Oklahoma remain tribal land, scheduling Carpenter v. Murphy for rehearing next term.
In Mitchell v. Wisconsin, the Court decided 5-4 – although not on traditional ideological lines – that lack of consciousness provides a sufficient exigency to allow police to draw blood to test whether a driver was inebriated without a warrant. Justice Alito wrote the opinion for the Court, joined by the Chief Justice, Justices Kavanaugh and Breyer in full, and Justice Thomas in part. Justice Sotomayor dissented, joined by Justices Ginsburg and Kagan, and Justice Gorsuch dissented separarely. The Court's line-up in this case is further evidence that Justice Gorsuch is more favorable to criminal defendants than a Justice Garland would have been and, at least where the death penalty is not concerned, perhaps more favorable than Justice Breyer too.
When it came to resolving whether the Trump Administration's decision to add a citizenship question to the Census in Department of Commerce v. New York, the Court issued what may prove to be a highly significant administrative law ruling. While holding that there was no statutory or constitutional bar to including a citizenship question on the Census, the Court also concluded that the Trump Administration's decision was sufficiently pretextual to justify remanding the case back to the district court for further proceedings. As a consequence, if the Trump Administration continues to insist on the inclusion of such a question, the Census may return to the Court this fall. (Another reason the Census could be back is that another case in the lower courts raises issues – such as whether the decision to include a citizenship question violates the Equal Protection Clause – not before the Court here.)
Chief Justice wrote the opinion for the Court, resolving a range of issues with differing degrees of support from the other justices.
First, the Court held unanimously that at least some of the plaintiffs had standing to raise the relevant claims.
Second, the five conservative justices concluded that including a citizenship question did not violate the Constitution's Enumeration Clause. Concluding otherwise, the Chief Justice explained, would have been tantamount to concluding that virtually every Census ever conducted was of questionable constitutionality. None of the Court's liberals joined this portion of the decision, but Justice Breyer's separate opinion did not contest this conclusion either.
Third, joined by six other justices, Chief Justice Roberts concluded that the Secretary of Commerce's decision to include a citizenship question was subject to judicial review under the Administrative Procedure Act. Only Justice Alito dissented from this holding, on the grounds that this sort of decision is committed to agency discretion. (Justice Gorsuch appears not to have joined this portion of the Chief's opinion nor Justice Alito's dissent.) While the Chief Justice affirmed that the Census Act afforded the Secretary with broad discretion, he also explained that the statute does "not leave his discretion unbounded."
Fourth, the Court held 5-4, along traditional right-left lines, that the Secretary's decision was not arbitrary and capricious or an abuse of discretion as those standards are traditionally understood, nor did the Secretary's decision violate express statutory provisions contained in the Census Act. Under the quite deferential standard traditionally applied, the Chief Justice explained, the agency provided a sufficient explanation to justify its policy choice. In order to conclude otherwise, he explained, requires substituting the judgment of the court for that of the agency, a big no-no in administrative law.
As Chief Justice Roberts explained, it did not matter that many, or even most, might conclude that the risk of an undercount caused by including a citizenship question outweighed concerns about the need to rely upon other information sources and estimation techniques to generate citizenship data; "the choice between reasonable policy alternatives in the face of uncertainty was the Secretary's to make. He considered the relevant factors, weighed risks and benefits, and articulated a satisfactory explanation for his decision. In overriding that reasonable exercise of discretion, the [district] court improperly substituted its judgment for that of the agency."
Fifth, despite the conclusion that the decision satisfied traditional APA review, Chief Justice Roberts, joined by the Court's liberals, concluded that there was sufficient evidence of pretext in the record to remand the decision. This is the most interesting, and potentially most consequential, part of the majority's decision.
While stressing that "in reviewing agency action, a court is ordinarily limited to evaluating the agency's contemporaneous explanation in light of the existing administrative record," and that "a court may not reject an agency's stated reasons for acting simply because the agency might also have had other unstated reasons," Roberts also concluded that special circumstances, specifically an unusually "strong showing of bad faith or improper behavior" could justify consideration of whether an agency's decision was unlawfully pretextual and the examination of materials outside of the administrative record.
While criticizing the district court for being too quick to order extrarecord discovery, the Chief Justice concluded that such an inquiry was ultimately justified and demonstrated that the reasons offered by the Secretary for including the citizenship question were not the actual reasons upon which the decision was based. Wrote Roberts:
It is hardly improper for an agency head to come into office with policy preferences and ideas, discuss them with affected parties, sound out other agencies for support, and work with staff attorneys to substantiate the legal basis for a preferred policy. The record here reflects the sometimes involved nature of Executive Branch decisionmaking, but no particular step in the process stands out as inappropriate or defective.
And yet, viewing the evidence as a whole, we share the District Court's conviction that the decision to reinstate a citizenship question cannot be adequately explained in terms of DOJ's request for improved citizenship data to better enforce the VRA. . . .
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. . . .
It is rare to review a record as extensive as the one before us when evaluating informal agency action—and it should be. But having done so for the sufficient reasons we have explained, we cannot ignore the disconnect between the decision made and the explanation given. Our review is deferential, but we are "not required to exhibit a naiveté from which ordinary citizens are free." . . .
The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case. . . .
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.
On this basis, the Court remanded the case back to the District Court for further proceedings.
Justice Breyer wrote separately to argue that the decision was also arbitrary and capricious, while Justice Thomas wrote separately arguing that there was no basis to second-guess the Secretary's decision, warning that the Court had opened a "Pandora's Box" of more searching judicial review into agency action – perhaps what we should call "harder look review" – than had previously been authorized.
Justice Thomas is undoubtedly correct that the Chief Justice took the unprecedented step of considering claims of pretext to invalidate an otherwise-lawful agency action, yet this was an extraordinary case. It's also not hard to conclude that this case – like many other Trump Administration court losses – was facilitated by the slapdash character of many administration actions. The same impulses that have led the Administration to disparage the need for experience or expertise have also produced unduly vulnerable agency actions.
That said, the Chief Justice's decision to prop open the door to consider pretext invites litigants challenging agency actions to search for evidence—whether or not in the official record—to show that they, too, have been the subject of an unlawfully pretextual agency action. There is nothing in the Chief Justice's opinion that suggests this analysis is to be confined to those contexts in which the distribution of political power or other particularly weighty concerns are at stake, and there is much language in his opinion (some of which I quoted above) that could find a ready home in legal challenges against HHS, the Education Department, or the EPA.
Time will tell whether Justice Thomas's warnings prove accurate, and whether Census case "harder look" displaces the "hard look" of Citizens for Overton Park v. Volpe, but given how much fodder the Chief Justice's opinion provides for briefs and petitions challenging agency action, lower courts will have ample opportunity to consider the question. Indeed, it is interesting to think how actions of prior administrations – such as, perhaps, politically motivated Affordable Care Act implementation decisions – would fare under this more rigorous standard.
One last note on today's decisions, with only one 5-4 decision decided today along traditional Right-Left lines with the conservatives in the majority, it remains the case that this term produced more 5-4 decisions in which the Court's four liberals anchored the majority, obtaining a fifth vote from one of the conservatives, than decisions with a five justice conservative majority. It's an interesting factoid, and one few would have predicted. It also suggests that throughout the term—as in the Chief's Census decision—no one got all of what they expected or wanted.
[Note: I corrected an error in my initial description of the Mitchell line up. Justice Gorsuch did not join Justice Sotomayor's dissent. He dissented separately.]