The Supreme Court’s 2018-2019 term will end with a bang. In a brief order issued after the justices’ private conference, the court announced this afternoon that it will review a challenge to the Trump administration’s decision to add a question about citizenship to the 2020 census. The court will take up the case and hear oral argument in the dispute – without following the normal procedure and waiting for a federal appeals court to weigh in first – in late April.
The dispute centers on the March 2018 announcement by Wilbur Ross, the Secretary of Commerce, that the 2020 census would include a question about citizenship. The Trump administration indicated that data collected from the question would help the U.S. Department of Justice to better enforce voting rights, but states and civil rights groups (among others) opposed the decision, countering that the question would make households with undocumented or Hispanic residents less likely to respond and would therefore lead to an inaccurate count.
The Supreme Court had already agreed last year to hear oral argument in a clash over the evidence in the case. In addition to the official records that Ross considered before deciding to include the citizenship question, the plaintiffs in the case – which include New York and other state and local governments – also wanted the trial court to consider other evidence, including by questioning both Ross and John Gore, who was then the head of DOJ’s civil rights division. In October, the Supreme Court prohibited the plaintiffs from questioning Ross but allowed them to question Gore and probe into other facts, and in November the justices granted the government’s request to review the evidentiary dispute, setting the case for oral argument on February 19.
But although the justices agreed to weigh in on the evidentiary dispute, they rejected the government’s request to put the trial in the case on hold. In January, the trial court issued a ruling that barred the government from including the citizenship question on the 2020 census.
Three days later, on January 18, the justices announced that they would not hear oral argument in the evidentiary dispute on February 19 after all, but they left open the possibility that they could return the case to their calendar later in the term.
One week later, the Trump administration asked the justices to review the trial court’s decision immediately, without requiring the government to appeal first to the U.S. Court of Appeals for the 2nd Circuit. The census questionnaire has to be finalized by the end of June, the government explained, which means that it would be virtually impossible to have the Supreme Court weigh in and reach a final resolution under the normal timeline.
The plaintiffs defended the trial court’s decision as correct, but they conceded that the question at the heart of the dispute is one “of national importance.” And they agreed that, if the justices believed that they would eventually grant review, the court should take the case now to resolve the dispute by the end of June.
Today’s conference was noteworthy for another reason: It was the first one that Justice Ruth Bader Ginsburg had attended since undergoing cancer surgery in late December. Additional orders from today’s conference are expected on Tuesday, February 19, at 9:30 am.