The Supreme Court gave the federal government a partial victory tonight in a dispute over discovery in the challenge to the government’s decision to reinstate a question about citizenship on the 2020 census. Without any publicly recorded objections, the justices kept on hold plans to depose Wilbur Ross, the Secretary of Commerce, about the decision. And although the justices rejected the government’s request to block other discovery in the case – specifically, the deposition of John Gore, the acting head of the civil rights division of the Department of Justice, and additional discovery outside the administrative record for the decision – they hinted that the government might be able to get broader relief further down the road.
The challenge to the citizenship question was filed in a federal court in New York by a group of states, cities and counties. When he announced the decision to reinstate the citizenship question, which had been part of the census for much of the 19th century and part of the 20th century, Ross indicated that including a question about citizenship would help the Department of Justice to enforce federal voting rights laws. But the challengers contend that the question would skew the results of the census, because undocumented immigrants – fearing deportation – may be hesitant to respond.
Earlier this year, the trial court granted the challengers’ request to depose Ross and Gore, over the government’s objection that the decision to restore the citizenship question was “backed by a voluminous administrative record,” so that no inquiry into Ross’ personal motivations was necessary. With depositions scheduled for early October and a trial scheduled for early November, on October 9 Justice Ruth Bader Ginsburg – who fields emergency requests from the geographic area that includes New York – put the depositions on hold and ordered the challengers to respond by October 11.
Tonight the full court acted on the government’s request. First, the justices granted the government’s plea to block the deposition of Ross, relief for which the government needed at least five votes. There were no publicly recorded dissents from this part of tonight’s order, so there is no way to know whether all of the justices supported this outcome or whether some were opposed but opted not to announce that opposition.
Ross’ deposition will remain on hold at least until next Monday, October 29, at 4 p.m.; if the federal government files a brief seeking review of the district court’s ruling, the deposition will remain on hold until the justices rule on the new request for review and, if that request is granted, rule on the merits of the discovery dispute.
The justices rebuffed the government’s request to block the deposition of Gore and other discovery outside the administrative record. However, the justices made clear in tonight’s order that their denial of the relief would not prevent the government from addressing those issues in its brief seeking review of the district court’s ruling.
Justice Neil Gorsuch filed a separate opinion, which was joined by Justice Clarence Thomas. Gorsuch agreed with his colleagues that the Ross deposition should stay on hold, but he would have gone further and granted the government’s other requests as well. Gorsuch expressed skepticism about the challenge and the merits of the district court’s orders, describing them as “highly unusual, to say the least.” “Leveling an extraordinary claim of bad faith against a coordinate branch of government requires an extraordinary justification” – which, Gorsuch seemed to suggest, the challengers had not shown. Because allowing some discovery to go forward would impose a burden on the government without any real hardship for the challengers, Gorsuch continued, he “would take the next logical step and simply stay all extra-record discovery pending our review.” Indeed, he observed, if other discovery is allowed to go forward, the challengers could try to rush through discovery and a trial and then “oppose certiorari on the ground that their discovery dispute has become ‘moot.’”