UPDATE: On Friday, January 18, the Supreme Court announced that it had removed the case from the February argument calendar and suspended the briefing schedule “pending further order of this Court.” Although the justices will not hear oral argument in the case in February, today’s order does not foreclose the possibility that the case could be argued later in the term, at which point the justices could also potentially review the district court’s decision blocking the government from including the citizenship question on the 2020 census.
On February 19, the Supreme Court is scheduled to hear oral argument in U.S. Department of Commerce v. U.S. District Court for the Southern District of New York, a dispute over evidence in a challenge to the Trump administration’s decision to reinstate a question about citizenship on the 2020 census. The justices agreed in November to review the case, but they also rejected the government’s request to put the trial in the case on hold. The district court went ahead with the trial, and on Tuesday it issued its decision, blocking the government from using the citizenship question on the census. Today the challengers asked the justices to dismiss the case, telling them that the district court’s ruling “has fundamentally altered the circumstances that were present” when the Supreme Court granted review.
The dispute arose in March 2018, when Secretary of Commerce Wilbur Ross announced that the 2020 census would include a question about citizenship. The government explained that including a citizenship question would help the Department of Justice better enforce federal voting-rights laws, but the decision drew a court challenge from a group of states, cities and counties, who argue that the question will discourage undocumented immigrants from responding to the census, skewing the results.
The challengers sought to question Ross and John Gore, the acting head of DOJ’s civil rights division. The Supreme Court blocked the challengers from questioning Ross but allowed them to depose Gore and to seek facts outside the official administrative record.
On Tuesday, the district court issued its ruling, barring the government from including the citizenship question on the 2020 census. Relying only on the official record, the district court concluded that the government’s conduct involved a “smorgasbord of classic, clear-cut” violations of the federal law governing administrative agencies.
In a statement issued later that day, a spokeswoman for DOJ described the government as “disappointed” and “still reviewing the ruling,” but she also argued that the government was “legally entitled to include” the question – suggesting that the government planned to appeal. But as of this afternoon, the government had not yet acted. Instead, the challengers seized the initiative, filing a motion to dismiss the Supreme Court case.
The challengers told the justices that the question in the Supreme Court case centers on whether the district court was “correct to order” the Ross deposition. But, the challengers said, that issue is now moot – that is, no longer a “live” controversy – because the district court made its decision without questioning Ross and vacated the order requiring Ross’ deposition. Any remaining questions about whether the district court should have allowed fact-finding outside the official record can be addressed if the government appeals, the challengers argued.
With a deadline of June 2019 to finalize the census questionnaire looming, the challengers contended that it would be more efficient for all of the issues in the dispute to be considered together, rather than first litigating the dispute over the evidence in the Supreme Court. If the government wants relief from the district court’s ruling barring it from using the citizenship question on the 2020 census, the challengers concluded, it can seek an expedited appeal.