Justices Seem Leery of Entering Census-Sampling Dispute, Calling It a Political Issue

Someone has to decide, and soon, how the next census will be conducted, but the justices of the Supreme Court hinted Monday that the decision is not theirs to make.

“This is a political dispute, and you want us to resolve it,” Justice Antonin Scalia told a lawyer for the House Republicans, who went to court earlier this year to challenge the Clinton administration’s plan to use statistical sampling in the next census.

Although the Republicans won in two lower courts, the high court justices--including the most conservative of them--said Monday that they are wary of using lawsuits to decide abstract or inherently political questions.

“I don’t like injecting us into a battle between the political branches,” Scalia said during Monday’s oral argument.

Justice Anthony M. Kennedy agreed, commenting that it “destroys all discipline” in the political system if the losing side can go to court to reverse the outcome.

The comments and questions Monday put in doubt whether the court will rule squarely on the census-sampling issue. The sampling plan calls for enumerators to revisit about 1% of the nation’s population after census takers have made an initial count.

If the justices throw out the lawsuits challenging the administration’s sampling plan, the matter will go back to Capitol Hill. There, the Republicans could refuse to fund the census next year if it includes sampling.

The administration maintains it has the authority under earlier laws to proceed with a “limited use of sampling” in Census 2000.

U.S. Solicitor General Seth Waxman, representing the administration, said the government plans to adjust the census figures to make up for a persistent undercount of minorities and the poor. This approach “will best achieve the Constitution’s goal of determining the number of persons in each state,” he said.

But several justices disputed whether the Constitution or the Census Act of 1976 permit the government to adjust its tallies based on sampling.

The Constitution requires an “actual enumeration” of the population every 10 years, said Justice Sandra Day O’Connor. “Most people would think an actual enumeration means a count,” she said, suggesting she shares that view.

Waxman said the authors of the Constitution did not want the states to submit old lists of residents or guesses of their inhabitants. Instead, he said, the census must be “a good-faith, empirical effort to determine the number of people in each state.”

As of April 1, 1990, the Census Bureau reported the U.S. population was 248,709,873. But it also admitted its count was off by 4 million or more. The city and county of Los Angeles joined a lawsuit to defend sampling as a way to adjust the count. Without it, the urban population in Southern California will be undercounted, their lawyers say, and the area will not receive its fair share of federal funds.

There were indications during Monday’s arguments that the defenders of the sampling plan may prevail on something of a procedural technicality.

In recent years, the justices have been sticklers on “standing.” They have insisted they will decide only lawsuits brought by someone who has suffered an actual, personal injury, such as losing a job or being assessed a fine.

“Aren’t we opening up a very large door?” asked Justice David H. Souter, if one group of lawmakers are permitted to sue the administration in federal court. “This is the first time. There is no tradition of this.”

The main lawsuit heard Monday was filed by House Speaker Newt Gingrich (R-Ga.) in February. A second suit was filed on behalf of voters in six states who say the adjusted census will deprive them of a representative in Congress.

Administration lawyers say both should be dismissed. Later this week, the justices will vote behind closed doors on the two cases, Department of Commerce vs. U.S. House of Representatives, 98-404, and Clinton vs. Glavin, 98-564.

If the justices decide the plaintiffs have no standing, the cases could be disposed of as early as next week. However, a written ruling on the issues could take several months.

Meanwhile, the justices refused to revive a legal challenge to “ambush interviews” on live television.

A self-described former hit man turned actor named Sonny Gibson says he was tricked in 1994 into appearing on Geraldo Rivera’s show, where he was humiliated by two women who charged him with sexual harassment. He sued Rivera for defaming him.

But the California courts threw out his claim based on the 1st Amendment. To sue the media, the plaintiff must prove he was defamed by false statements, the state court said, and Gibson could not “prove the falsity of the statements” (Gibson vs. Rivera, 98-313).