Tuesday, April 23, 2019

Heard at SCOTUS -- International and Comparative Law!

According to press accounts, today's oral argument in Dep't of Commerce vs. New York -- the challenge to a census question on citizenship -- suggested that the Court's majority are willing to uphold the inclusion of the question.  We'll have to wait to see whether those predictions are correct.

Meanwhile, it was curious, and perhaps a harbinger of things to come, that Justice Kavanaugh raised an issue of international law and practice during the oral argument.  Here's the relevant excerpt from the transcript:

JUSTICE KAVANAUGH: [T]he United Nations recommends that countries ask a citizenship question on the census. And a number of other countries do it. Spain, Germany, Canada, Australia, Ireland, Mexico ask a citizenship question. And the United States has asked a citizenship question, as you know, in one form or another since 1820, excluding 1840. And, again, long form at times, in more recent times, and then on the ACS since 2005. The question is, does that international practice, that U.N. recommendation, that historical practice in the United States, affect how we should look at the inclusion of a citizenship question in this case?

UNDERWOOD: The same guidance from the U.N. also says to be careful to test questions to make sure they don't interfere with the enumeration. It says you need to make a judgment in context. It may be that those countries either haven't examined or don't have the problem that has been identified -- the problem of depressing the enumeration that the United States has. It's certainly something to look at, but –

JUSTICE KAVANAUGH: But you agree it's very -- it's a very common question internationally?

UNDERWOOD: Well, it is certainly useful information for a country to have. And I'm not suggesting at all that that information shouldn't be collected. The question is whether it should be collected on the very instrument that is -- whose principal function is to count the population, when we have such strong evidence that it will depress that count, make it less accurate . . .


In the past, it has been the more liberal justices who have paid special attention to international and comparative law and practice -- to provide support for affirmative action, cutbacks to the death penalty, marriage equality, and so on.  But Justice Kavanaugh, clearly a conservative member of the Court, came to the Court having taught international law in the past.  As New York Solicitor General Underwood's adept answer to Justice Kavanaugh's question indicates, comparative law is not always straightforward.  Going forward, it appears that litigants will have to be prepared for international and comparative questions from both wings of the Court -- a welcome development, since there is much that the U.S. can learn from international bodies including, in the census case, the importance of testing the impacts of certain census questions before introducing them.  



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