Justice Sotomayor warns of 'irreparable harm' as the Supreme Court cuts the census short

Justice Sotomayor warns of 'irreparable harm' as the Supreme Court cuts the census short
Official Portrait of Justice Sonia Sotomayor (Collection of the Supreme Court of the United States, Steve Petteway)

Justice Sonia Sotomayor was the sole dissenter on Tuesday when the Supreme Court decided to allow the Trump administration to cut short the census, which a lower court had ordered must continue until Oct. 31.

Under Commerce Secretary Wilbur Ross, the Census Bureau had initially extended its deadline for completing the census — a count of the people in the United States crucial for determining the distribution of funds, services, and electoral representatives — until the end of October because of disruptions caused by the coronavirus pandemic. The census had already been a major point of political controversy, as Republicans stood accused of using a citizenship question (since removed) to discourage minority residents from responding to the survey. But after deciding to extend the census, officials abruptly reversed themselves and cut the count short, hoping to end it by the last day of September.

A group of various individual an entities who fear they would be harmed by this change challenged the decision legally, and eventually the Commerce Department was ordered by the courts to continue the count. But now, the Supreme Court his stayed that order, permitting the administration to stop counting in a brief, unsigned declaration offering no explanation for its decision.

Only Sotomayor objected, writing a detailed dissent explaining why she though the majority's decision is wrong.

"I would deny a stay of that injunction," she wrote. 'The Government fails to demonstrate that the injunction is likely to cause it irreparable harm. Regardless of the merits of respondents' claims, this failure, alone, requires denying the requested stay."

The only reason the administration claimed it needed to end the count early, she said, is that it is required to turn over the results of the census to the president by the end of the year, according to the statute.

But, Sotomayor pointed out, officials have already said that it is "impossible" for the Census Bureau to turn over the results of the count by the Dec. 31 deadline regardless of whether they stop now. And they have an alternative: The administration can ask Congress to simply extend the deadline, which officials had already begun to do by the time the Commerce Department decided to cut the census short. They also could direct more resources toward speeding up the analysis of the census data, Sotomayor said, but the department does not appear to have considered this option.

So while the harms the administration says it will suffer seem dubious, Sotomayor said the harms suffered by people impacted by an undercount could be significant.

"In contrast to the Government's unsupported claims of irreparable harm, respondents will suffer substantial injury if the Bureau is permitted to sacrifice accuracy for expediency. As the District Court found, and the Ninth Circuit credited, '[a]n inaccurate count would affect the distribution of federal and state funding, the deployment of services, and the allocation of local resources," she wrote.

She also noted that the administration has claimed it has already counted 99 percent of people.

"But even a fraction of a percent of the Nation's 140 million households amounts to hundreds of thousands of people left uncounted," she explained. "And significantly, the percentage of nonresponses is likely much higher among marginalized populations and in hard-to-count areas, such as rural and tribal lands."

She also noted that in 2010, the Census continued its count for a full month after already reaching the 99 percent threshold.

"The harms caused by rushing this year's census count are irreparable. And respondents will suffer their lasting impact for at least the next 10 years," Sotomayor concluded.

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