The Supreme Court's conservative judges on Tuesday appeared inclined to allow the Department of Commerce to include a question about citizenship in the upcoming census.
“The United Nations recommends that countries ask a citizenship question on the census,” Justice Brett Kavanaugh, a recent Trump appointee, said at a hearing Tuesday morning. “And a number of other countries do it. Spain, Germany, Canada, Australia, Ireland, Mexico ask a citizenship question.”
Kavanaugh went on to ask whether that practice affects how the court should evaluate the question.
Chief Justice John Roberts added that “demographic questions” on the census were “quite common.”
Kavanaugh's comments came during arguments about the legality of the Trump administration's plan to ask census respondents whether they are citizens. Three federal trial judges issued rulings that banned the Commerce Department from including that question.
The administration appealed those decisions to the Supreme Court, which heard arguments on Tuesday.
Ride-sharing company Uber, online glasses seller Warby Parker, the Los Angeles Chamber of Commerce and Nielsen are among a host of companies and business organizations that urged the Supreme Court to prohibit the government from asking census respondents about their citizenship. They argue that the question will depress response rates, which will harm businesses that rely on census data for marketing and advertising product development.
Nielsen also said in a friend-of-the-court brief that it uses census data in its media measurement techniques. “The addition of a question to the census that will reduce the census’s accuracy will have a lasting and negative impact on the operations of the largest American consumer product manufacturers, retailers, media, and marketing businesses,” the company wrote last month.
But several justices questioned whether the citizenship question would cause a drop in response rates.
One of the trial judges who ruled against the Commerce Department cited a Census Bureau estimate that asking people about their citizenship would depress response rates in homes with non-citizens by more than 5%, compared to the 2010 census.
But Justices Samuel Alito and Neil Gorsuch questioned that conclusion, saying it was based on response rates to a long-form questionnaire by the American Community Survey.
Alito said that numerous factors could have depressed response rates among non-citizens to a long-form questionnaire.
“What jumps out is the fact that citizens and non-citizens differ in a lot of respects other than citizenship. They differ in socioeconomic status. They differ in education. They differ in language ability,” Alito said. “So I don't think you have to be much of a statistician to wonder about the legitimacy of concluding that there is going to be a 5.1 percent lower response rate because of this one factor.”
That point was backed up by Gorsuch, another Trump appointee.
“Doesn't Justice Alito have a point, to the extent that there could be multiple reasons why individuals don't complete the form,” Gorsuch asked during the hearing.
But Justice Sonia Sotomayor, an Obama appointee, said there was a 100% chance that fewer people would respond to the survey if the question was included.
“One census surveyor described an incident where he walked into a home, started asking citizenship, and the person stopped and left his home, leaving the census surveyor sitting there,” Sotomayor said Tuesday morning. “So, if you're talking about prediction, this is about 100 percent that people will answer less.”
The major advertising industry groups said last year that they objected to the citizenship question. “We are concerned that the addition of a citizenship question would depress response among both non-citizens and their families (even if family members are indeed citizens),” the CEOs of the American Association of Advertising Agencies, American Advertising Federation, Association of National Advertisers, and Advertising Research Foundation wrote in a jointly signed letter sent to the Commerce Department last August.