Last week the Supreme Court announced that it would no longer hear oral argument on February 19 in a dispute over evidence in a challenge to the Trump administration’s decision to bring a question about citizenship back to the 2020 census. That announcement came after a federal district court in New York barred the government from using the question. Today the federal government asked the justices to consider right away whether it can include the question, without waiting for the court of appeals to weigh in on the issue first. Quick action on the case is necessary, the government told the justices, because it needs to finalize the census questionnaire by the end of June if it wants to get it printed on time.
The dispute arose back in March of 2018, when Secretary of Commerce Wilbur Ross announced that the 2020 census would ask whether each member of a household is a U.S. citizen. Questions about citizenship have been included in the census in years past: From 1820 until 1950, the census asked about the number of “foreigners not naturalized” in each household, while from 1960 until 2000, the census asked at least some households whether the people who lived there were citizens. But Ross’ announcement was still controversial. Although Ross said that the data collected from the question would help the U.S. Department of Justice to better enforce voting rights, opponents of the decision – who have included states and civil rights groups – countered that if the question is included, households with undocumented or Hispanic residents would be less likely to respond, which could lead to them being undercounted. And because these immigrants tend to live in states that lean Democratic, the challengers say, the undercount could in turn result in less federal funding and fewer representatives in Congress for those states.
When the dispute first came to the Supreme Court, it centered on a clash over the evidence in the case. The challengers – New York and other state and local governments, along with immigration and civil rights groups – wanted to collect evidence beyond the official records that Ross considered before deciding to reinstate the citizenship question, including by questioning both Ross and John Gore, the head of DOJ’s civil rights division. The government argued that there was no need for the challengers to probe the two officials’ thought processes when it had provided thousands of pages of documents explaining Ross’ decision, and it won a partial victory: In October, the Supreme Court blocked the challengers from questioning Ross, but it allowed the deposition of Gore and other fact-finding to go forward, and on November 16 it agreed to take up the evidentiary dispute, setting the case for oral argument on February 19.
The Supreme Court also rejected the government’s request to put the trial in the case on hold, allowing the trial to start on November 5. On January 15, a federal district court in New York barred the government from including the citizenship question on the 2020 census. The district court concluded that in deciding to reinstate the citizenship question, Ross had committed “a veritable smorgasbord of classic, clear-cut” violations of federal law governing administrative agencies. In reaching that decision, the district court emphasized, it had relied only on the official record. Any evidence beyond that, the district court explained, “merely confirms that the Court’s conclusions and illustrates how egregious the” violations were.
Two days after the district court ruled, the challengers asked the justices to dismiss the case. The main question before the justices in the evidence dispute, the challengers insisted, was whether it was appropriate for the district court to order the questioning of Ross. But that is no longer a live issue, the challengers argued, because the district court ruled against the government even without Ross’ testimony.
On January 18, the Supreme Court announced that it would not hear oral argument in the case in February after all. But it left open the possibility that the case could return to its oral argument calendar later in the term – presumably, although the justices did not say so explicitly – for the Supreme Court to consider not only the dispute over evidence but also the merits of the district court’s decision blocking the government from using the citizenship question on the 2020 census.
That is precisely what the federal government asked the Supreme Court to do today. U.S. Solicitor General Noel Francisco, the government’s top lawyer at the Supreme Court, urged the justices to take up the case now, without requiring the government to first go to the U.S. Court of Appeals for the 2nd Circuit. The government emphasized that time is of the essence, because the census questionnaire has to be finalized by the end of June. It would be virtually impossible to go through the normal appeals process (even on an expedited basis) and still reach a final resolution by then, the government suggested. Going straight to the Supreme Court is, “as a practical matter,” the government argued, the only way to ensure that the Supreme Court will be able to weigh in on whether the government can use the citizenship question on the 2020 census.
The Supreme Court should also step in now because the case “involves an issue of imperative public importance,” the government told the justices. The district court’s ruling blocking the government from using the citizenship question is, the government contended, “the first time” that a court “has ever dictated the contents” of the census questionnaire. But the citizenship question is, the government continued, “wholly unremarkable”: “Questions about citizenship or country of birth (or both) have been asked of at least a sample of the population on all but one decennial census from 1820 to 2000.”
The government asked the justices to consider the case and grant review at either their February 15 or their February 22 conference and then schedule the case for oral argument at the end of April “or at a special sitting in May.” On the government’s proposed schedule, the challengers’ brief opposing review would be due on February 6 – so we are likely to know soon whether the court will agree to expedite consideration of the government’s petition.