Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch said they would have granted the Trump administration’s request to delay the trial. It is unclear how the other six voted — including new Justice Brett M. Kavanaugh — because justices are not required to publish their votes in such procedures. But at least five of the six were unwilling to block the trial.
Later Friday night, the justices refused a Trump administration request to halt a novel lawsuit filed by young Americans that attempts to force the federal government to take action on climate change. Thomas and Gorsuch would have granted the request, but the court said the administration should make its appeal to a lower court first.
In the Commerce Department case, the administration has been to the high court several times in an attempt to keep the challengers from questioning Ross and other administration officials about their motivations in adding the question. Department of Justice lawyers finally asked the court to delay the proceedings.
Challengers to the citizenship question cheered the court’s refusal to do so.
“DOJ has tried every trick in the book (and then some) to block this case — and failed every time,” Amy Spitalnick, a spokeswoman for New York Attorney General Barbara Underwood (D), said in a statement. “You really have to wonder what they’re trying to hide.”
Democratic lawmakers and immigrant rights groups have blasted the idea of adding the citizenship question. They contend that it will make immigrants and their families less likely to fill out the form, leading to a more costly and less accurate census.
Six former census directors and a Census Bureau internal analyst also have said the question would harm the count. That, in turn, could cost states with large immigrant populations representation in Congress and federal funds distributed on the basis of population.
The question was asked in the past, but it has been decades since it was part of the routine decennial census questioning. The administration has said that any challenge to the Commerce Department action should be based on the administrative record, not probes of how top government officials decided it should be added.
Solicitor General Noel J. Francisco told the court that Ross had explained his actions and said it was improper for courts to authorize “an intrusive fishing expedition involving the depositions of high-ranking government officials, including a cabinet secretary.”
In an unsigned opinion Oct. 22, the Supreme Court blocked a deposition of Ross authorized by lower federal courts in New York. But it said other discovery could go forward, including the deposition of a top Justice Department official.
There are six legal challenges to the inclusion of a question about a census respondent’s citizenship.
The states and organizations that brought the lawsuits say probing the intentions of officials is crucial. Ross has “offered shifting and inaccurate explanations in his decisional memo and in testimony before Congress” as well as in new documents filed in the case, said a brief filed by the New York Immigration Coalition, the American Civil Liberties Union and others.
Ross first said he added the citizenship question at the behest of the Justice Department, which said it was needed to help enforce voting rights.
But emails showed that he had been pushing for the inclusion of the citizenship question earlier than that, and the groups and states contend that the Justice Department request was a pretext.
In a document filed in response to questions sent by Underwood, Ross acknowledged that he had discussed the issue with former White House adviser Stephen K. Bannon and a Republican secretary of state who has been a leader in anti-immigration efforts.
In the document, Ross said he recalled Bannon calling him in spring 2017 to ask whether Ross would speak to Kansas Secretary of State Kris Kobach about ideas for a possible citizenship question on the census.
That appears to contradict Ross’s testimony to Congress this year. When asked at a hearing March 20 by Rep. Grace Meng (D-N.Y.) whether the president or anyone in the White House had discussed the citizenship question with him, Ross said, “I am not aware of any such.”
The trial is scheduled to start next week before U.S. District Judge Jesse Furman in New York. He has denied the Trump administration’s motions for delay, and has been backed up by panels of the U.S. Court of Appeals for the 2nd Circuit.
In asking the Supreme Court for a delay, Francisco said “the most efficient path forward is to stay the trial and resolve the question whether the district court must confine its review of the Secretary’s decision to the administrative record, while leaving sufficient time for the district court to conduct its review followed by prompt appellate review.”
Otherwise, Francisco said, there will be a full trial that includes “whether the Secretary harbored secret racial animus in reinstating a citizenship question to the decennial census.”
If the judge made such a finding, Francisco said, “that harm would not be fully (or even largely) remedied if [the Supreme Court] subsequently confined the district court’s review to the administrative record.”
Tara Bahrampour contributed to this report.