Executive Discretion and Judicial Deference After the Census Case: The Chief Justice’s Tightrope
In this essay, I unpack the factors that contributed to Roberts’s unexpected result in the census ruling, and I venture some thoughts about how that outcome became a needed counterweight to the gerrymandering decision. I analyze what litigation approaches may succeed in drawing the closer scrutiny Roberts would support. Roberts does not suggest that his analysis applies only to domestic matters, though full pretext scrutiny in national security cases may be a tougher sell. Nonetheless, a lingering national security controversy—over President Trump’s travel ban—may provide an early occasion to test whether my analysis is on course.