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Will the Supreme Court Go Nativist?

A citizenship question on the 2020 census could have a lasting impact — including on the Supreme Court itself, argues Brennan Center Fellow Ciara Torres-Spelliscy.

The Supreme Court is set to decide whether the Depart­ment of Commerce can pose a ques­tion about respond­ents’ citizen­ship status on the 2020 census.

The prospect of the ques­tion being added has caused concern that if enough people react to the citizen­ship ques­tion negat­ively by fail­ing to fill out the census completely, there could be an under­count of the popu­la­tion in 2020 poten­tially running into the millions. (In 2016, 9.8 percent of U.S. house­holds included a non-citizen.) And such an under­count will not be evenly distrib­uted and could have dispro­por­tion­ate impact in states with large immig­rant popu­la­tions like Arizona, Cali­for­nia, New York, and Texas.

The census has robust rules to protect confid­en­ti­al­ity, but there remains a strong fear of reper­cus­sions from the Trump admin­is­tra­tion, which has arres­ted undoc­u­mented work­ers at court­houses, enacted an atro­cious family separ­a­tion policy, and routinely vili­fied undoc­u­mented migrants and asylum seekers.

The word from last week’s oral argu­ments in the case, Depart­ment of Commerce v. New York, is that the conser­vat­ive major­ity on the Court seems poised to give the go-ahead to adding the citizen­ship ques­tion. But I would urge each of them to think about which side of history they want to be on. To put a fine point on the matter, do they want to be on the white nativ­ist side of history?

Histor­ic­ally, during its nativ­ist streaks, the Supreme Court has turned a blind eye to immig­rants and other communit­ies of color they deemed unworthy of full rights. Some of these cases are now infam­ous, such as Korematsu v. United States, which allowed the federal govern­ment to put Japan­ese immig­rants and Japan­ese Amer­ic­ans into deten­tion camps. The Court’s ruling in Dred Scott v. Sand­ford fenced out African Amer­ic­ans from being considered citizens. As Chief Justice Taney wrote in Dred Scott, “We [the major­ity of the Supreme Court] think they [African Amer­ic­ans] are not, and that they are not included, and were not inten­ded to be included, under the word ‘cit­izens’ in the Consti­tu­tion[.]”

And then there are the lesser-known nativ­ist cases: US v. Thind, in which the Court decided that a man from India could not become a U.S. citizen because he wasn’t white, which built on the earlier Ozawa v. United States, which like­wise ruled that a man from Japan could not be natur­al­ized because he wasn’t white. Thind and Ozawa have been largely lost to the dust­bin of history and are filed under the category, “what the hell were they think­ing?”

Fortu­nately, the Court has also at times been the unlikely hero to immig­rants. In the 1886 case Yick Wo v. Hopkins, the Court considered the ques­tion of whether equal protec­tion applied to immig­rants in San Fran­cisco, which had passed a law that made it nearly impossible for Chinese busi­ness­men to run laun­dries. The Court concluded: “The rights of the peti­tion­ers … are not less because they are aliens …The four­teenth amend­ment to the consti­tu­tion is not confined to the protec­tion of citizens.” The Court also didn’t turn a blind eye to the discrim­in­a­tion that Chinese immig­rants were facing, noting, “[t]he fact of this discrim­in­a­tion [against the Chinese] is admit­ted. No reason for it is shown, and the conclu­sion cannot be resisted that no reason for it exists except hostil­ity to the race and nation­al­ity to which the peti­tion­ers belong, and which, in the eye of the law, is not justi­fied. The discrim­in­a­tion is, there­fore, illegal[.]”

The Supreme Court also protec­ted immig­rant rights in the 1982 case Plyler v. Doe, in which the Court considered whether Texas could essen­tially bar chil­dren of undoc­u­mented immig­rants access to public schools. As Justice William J. Bren­nan wrote for the Court, Texas argued “at the outset that undoc­u­mented aliens, because of their immig­ra­tion status, are not ‘per­sons within the juris­dic­tion’ of the State of Texas, and that they there­fore have no right to the equal protec­tion of Texas law. We reject this argu­ment. Whatever his status under the immig­ra­tion laws, an alien is surely a ‘per­son’ in any ordin­ary sense of that term.” Justice Bren­nan contin­ued: “The Equal Protec­tion Clause was inten­ded to work noth­ing less than the abol­i­tion of all caste-based and invi­di­ous class-based legis­la­tion. That object­ive is funda­ment­ally at odds with the power the State asserts here to clas­sify persons subject to its laws as nonethe­less excep­ted from its protec­tion.” And in the end, the Supreme Court ruled that barring chil­dren of undoc­u­mented migrants from public school was uncon­sti­tu­tional.

Both Yick Wo and Plyler embrace an inclus­ive vision that protects all persons in Amer­ica under the Consti­tu­tion. And the Consti­tu­tion requires that the census must capture an “actual Enumer­a­tion” of all persons present here, not just Amer­ican citizens. But adding a citizen­ship ques­tion in 2020 is likely to ruin the count. If the Roberts Supreme Court allows this, it will be on the nativ­ist side of history in a nation of immig­rants.

The views expressed are the author’s own and not neces­sar­ily those of the Bren­nan Center for Justice.

(Image: HeroIm­ages)