On November 16, the Supreme Court announced that it would hear oral argument in February in a dispute over evidence in the challenge to the Trump administration’s decision to bring back a question about citizenship on the 2020 census. Yesterday the federal government took the unusual step of sending a letter to the Supreme Court to “suggest” that the justices put further proceedings in a trial contesting the decision on hold. The letter came after both the trial court and a federal appeals court declined to block the proceedings, with the trial court suggesting that the government’s multiple filings could warrant sanctions.
The clash has its origins in the announcement, in March of this year, by Secretary of Commerce Wilbur Ross that the 2020 census would, for the first time in over 50 years, include a question about whether individuals responding to the census are U.S. citizens. The federal government explained that the information would help the Department of Justice better enforce federal voting rights laws, but the challengers – led by New York – argue that including the question will deter undocumented immigrants and their families from completing the census, leading to an inaccurate population count.
Earlier this month U.S. District Judge Jesse Furman, who is presiding over the trial, rejected what he described as the government’s “latest and strangest effort” to stop the proceedings until the Supreme Court rules on the government’s challenge to the district court’s discovery orders as “most puzzling, if not sanctionable.” The U.S. Court of Appeals for the 2nd Circuit upheld Furman’s ruling.
In a letter addressed to Scott Harris, the clerk of the Supreme Court, rather than a brief addressed to the justices, the Trump administration suggested that the justices “may wish to reconsider staying” the next steps in the trial – in which closing arguments are scheduled for today – in light of their decision to weigh in on the dispute over the evidence. Doing so, U.S. Solicitor General Noel Francisco explained, would ensure that the Supreme Court will be able to decide the question that it agreed to review. (At the same time, Francisco acknowledged that if the trial is allowed to proceed, the government will still have a case on appeal because the Supreme Court could order the district court not to consider evidence outside the official government record and could continue to prohibit questioning of Ross.)
Particularly because of the unusual posture of the government’s request, there is no way to know when or whether the Supreme Court will act on yesterday’s letter.
This post was also published on SCOTUSblog.