The census-form question about citizenship is constitutional and will likely be found so by the U.S. Supreme Court. I base this thesis on five premises.

Premise 1

All federal judges are political—all. Constitutional scholar Jeffrey Toobin has observed: “When it comes to the core of the Court’s work, determining the contemporary meaning of the Constitution, it is ideology, not craft or skill, that controls the outcome of cases.... When it comes to the incendiary political issues that end up in the Supreme Court, what matters is not the quality of the arguments, but the identity of the justices.” What separates justices “is judicial philosophy—ideology—and that means everything on the Supreme Court.”

Similarly, Richard A. Posner, the great conservative judge and law professor, has written: “It is rarely possible to say with a straight face of a Supreme Court decision that it was decided correctly or incorrectly.” Constitutional cases, he added, “can be decided only a basis of a political judgment, and a political judgment cannot be called right or wrong by reference to legal norms.” (Some judges, after previewing this piece told me that Judge Posner’s comment about judges always being political is too categorical, that sometimes judges and judicial philosophies are not political.)

Roy Cohn once accurately observed: “Don’t tell me what the law is; tell me who the judge is.”

Premise 2

The claim that the census should seek only the number of residents, legal and illegal, in a state is not accurate. Section 2 of the 14th Amendment mandates the counting of citizens in each state. Legal scholars David B. Rivkin and Gibson B. Gray explain the necessity of this: