Supreme Court Allows Trial on Census Citizenship Question to Go Forward
Posted November 2, 2018 8:06 p.m. EDT
WASHINGTON — Rejecting a request from the Trump administration, the Supreme Court declined on Friday to halt a trial in a lawsuit challenging the addition of a question concerning citizenship to the 2020 census.
The court’s brief order, which gave no reasons, came a little over a week after it granted the administration a partial victory in the case by temporarily blocking the deposition of Wilbur Ross, the commerce secretary, who oversees the Census Bureau.
The lawsuit, filed by New York, other states, localities and advocacy groups, said that asking the citizenship question was a calculated effort by the administration to discriminate against immigrants. The advocacy groups said that Ross’ “shifting and inaccurate explanations” for the addition of the question pointed to a political motive.
Inquiring about citizenship, the plaintiffs said, would “fatally undermine” the accuracy of the census because both legal and unauthorized immigrants might refuse to fill out the form. That could reduce Democratic representation when state and congressional districts are drawn in 2021, and affect the distribution of hundreds of billions of dollars in federal spending.
The trial is scheduled to start Monday in U.S. District Court in Manhattan. While the court blocked testimony by Ross in its earlier unsigned order, on Oct. 22, it rejected the administration’s requests to halt the deposition of a Justice Department lawyer and to stop the plaintiffs from seeking other information from the government.
The Oct. 22 ruling ordered the government to file a petition by Oct. 29 seeking review of whether Ross could be deposed, and it said the government could renew its objections to other orders from the trial judge. But the Supreme Court said nothing about stopping the trial.
On Friday, justices Clarence Thomas, Samuel Alito and Neil Gorsuch said they would have granted the administration’s request to halt the trial. In the Oct. 22 ruling, Gorsuch, joined by Thomas, said in a partial dissent that the trial judge should stop the trial until the Supreme Court acted.
“One would expect that the court’s order today would prompt the district court to postpone the scheduled trial and await further guidance,” JGorsuch wrote.
He added that there was no indication of bad faith in Ross’ conduct in connection with the citizenship question.
“There’s nothing unusual about a new cabinet secretary coming to office inclined to favor a different policy direction, soliciting support from other agencies to bolster his views, disagreeing with staff or cutting through red tape,” Gorsuch wrote. “Of course, some people may disagree with the policy and process. But until now, at least, this much has never been thought enough to justify a claim of bad faith and launch an inquisition into a cabinet secretary’s motives.”
On Oct. 26, Judge Jesse M. Furman ruled that the trial should proceed.
“Defendants provide no basis to deviate from the well-established and well-justified procedures that have generally been applied in federal courts for generations — whereby district courts decide cases in the first instance, followed by an appeal by the losing party, on a full record, to the court of appeals and, thereafter, a petition to the Supreme Court,” Furman wrote.
“Defendants may yet have their day to argue the merits in the Supreme Court,” he wrote. “But for many salutary reasons, that day should not come before this court has decided the merits in the first instance.”
An appeals court also refused to halt the trial, and the Trump administration returned to the Supreme Court on Monday. Relying on Gorsuch’s partial dissent, Solicitor General Noel J. Francisco urged the justices to stop the trial while the Supreme Court considered the government’s petition.
“Without a stay,” Francisco wrote, “there will be a full trial before the district court into the subjective motives of a sitting cabinet secretary, including whether the secretary harbored secret racial animus in reinstating a citizenship question to the decennial census. The harms to the government from such a proceeding are self-evident.”
The advocacy groups said that Ross’ motives were a key element of the case. He initially said that he had acted in response to a December 2017 request from the Justice Department and that he had not consulted with the White House.
Later, Ross acknowledged that he had been exploring the idea long before receiving a letter from the Justice Department and that he had discussed the issue with Steve Bannon, then President Donald Trump’s chief strategist, in spring 2017.