Conservatives, Often Wary of Foreign Law, Embrace It in Census Case

Justice Stephen G. Breyer wrote an entire book, “The Court and the World,” on the ways the American legal system does and should interact with the international community.

But none of the court’s four liberal justices asked about the apparently widespread international practice of asking about citizenship on censuses.

Unfortunately, the briefs in the case, Department of Commerce v. New York, No. 18-966, did not really explore how the experiences of other nations compare to the American one.

A brief from the Trump administration noted that “other major democracies inquire about citizenship on their census, including Australia, Canada, France, Germany, Indonesia, Ireland, Mexico, Spain and the United Kingdom, to name a few.” The brief added that “the United Nations also recommends asking about citizenship on a census,” citing a 2017 United Nations document.

The document itself, in a passage not quoted in the brief, warned that “it is advisable to avoid topics that could increase the burden on respondents and those that are likely to arouse fear, local prejudice or superstition or that might be used to deliberately promote political or sectarian causes as these are likely to have a detrimental effect on response rates and support for the census.”

During the arguments, Barbara D. Underwood, New York’s solicitor general, urged the court not to allow the question. She acknowledged that information about citizenship “is certainly useful for a country to have.”

But she said obtaining it through the main census form does not make sense everywhere. The Constitution requires an “actual enumeration” that counts everyone living in the United States, and that provision does not have a counterpart in every other country’s foundational laws. And other countries may not experience the drop in participation that government experts have said would result from adding the citizenship question in the United States.

“It may be,” Ms. Underwood said, “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.”