[UPDATE on Friday, October 5: Justice Ruth Bader Ginsburg turned down the government’s request this afternoon, but she left open the possibility that the government could return to the Supreme Court before the depositions, which are currently scheduled for October 10 and 11, go forward.
Ginsburg indicated that the application to block the depositions was denied, “provided that the Court of Appeals will afford sufficient time for either party to seek relief in this Court before the depositions in question are taken.”]
The federal government went to the Supreme Court today, requesting a halt to the depositions of two senior Trump administration officials – Secretary of Commerce Wilbur Ross and John Gore, the acting head of the Department of Justice’s Civil Rights Division – in a challenge to Ross’ decision to bring back a question about citizenship on the 2020 census. The depositions are scheduled for early October, with a trial to follow in early November, but the government is asking the justices to put them on hold.
The challenge to the citizenship questions was filed in federal district court in New York by 17 states, along with (among others) the District of Columbia and several major U.S. cities and counties. From 1820 until 1950, the census had generally asked about citizenship, and from 1960 until 2000, the census asked some respondents whether they were U.S. citizens. But Ross announced this year that the 2020 census would ask all respondents about their citizenship; the data, he explained, would help the U.S. Department of Justice to enforce federal voting rights laws.
The challengers contend that asking about citizenship may result in the population count being too low, because undocumented immigrants – fearing repercussions such as deportation – may be reluctant to respond. They have alleged, as U.S. solicitor general Noel Francisco explained in the government’s filing today, that Ross’ “decision was driven by secret motives, including animus against racial minorities,” and the district court ruled that they could depose both Ross and Gore on this question.
The government urged the justices to block those depositions, stressing that Ross “consulted with many parties, including Census Bureau, Commerce Department, and Justice Department officials, and he set forth his reasons in a detailed memorandum backed by a voluminous administrative record.” Particularly given this extensive paper record, the government argued, Ross’ own thoughts have nothing to do with whether the decision to reinstate the citizenship question is proper, and there is no reason for the challengers to depose him about it. Nor has anyone involved in the case, the government continued, explained what purpose might be served by deposing Gore, who would not be able to provide any insight into what Ross was thinking at the time.
The government’s request went to Justice Ruth Bader Ginsburg, who handles emergency appeals from the geographic region that includes New York. Ginsburg can handle the request herself or refer it to her colleagues; she could also ask the challengers to weigh in.
This post was also published on SCOTUSblog.