The Supreme Court on Monday shielded Commerce Secretary Wilbur Ross from answering lawyers’ questions in a lawsuit challenging his decision to add a citizenship question to the 2020 Census form.
It is one of six legal challenges to the question, which Ross announced March 26 would be added to the survey to help enforce the Voting Rights Act. The states and groups say it will intimidate some from participating and result in an inaccurate census.
The court’s action makes it unlikely that Ross will have to give a deposition in the case but allows the suit to go forward, at least temporarily. The court said it would entertain other objections from the government before the trial, which is scheduled to start in New York on Nov. 5.
The unsigned order seemed like an attempt by the court to avoid a 5-to-4 split in its first politically significant action since the addition of new Justice Brett M. Kavanaugh.
While the court for now blocked the deposition of Ross — it is clear there was at least a majority for that — it allowed the states to depose acting assistant attorney general John Gore. There were noted dissents to the order only from Justices Neil M. Gorsuch and Clarence Thomas, who said the distinction the court drew did not make sense.
“Respectfully, I would take the next logical step and simply stay all extra-record discovery pending our review,” Gorsuch wrote. “When it comes to the likelihood of success, there’s no reason to distinguish between Secretary Ross’s deposition and those of other senior executive officials.”
He suggested that U.S. District Judge Jesse Furman delay the proceedings until the Supreme Court worked through all the issues.
Amy Spitalnick, a spokeswoman for the New York attorney general’s office, took an optimistic view. “We welcome the court’s decision to allow us to complete discovery in the case, with the exception only of Sec. Ross’ deposition, which remains on hold pending further briefing,” she said in a statement.
“We’ll get to the bottom of how the decision to demand citizenship status was made, as we continue our case to ensure a full and fair Census.”
Solicitor General Noel Francisco told the court that Ross had explained his actions and that it was improper for courts to authorize “an intrusive fishing expedition involving the depositions of high-ranking government officials, including a cabinet Secretary.”
The states and the groups said Ross should be deposed. He 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.
Democratic lawmakers and immigrant rights groups have blasted the idea of adding the citizenship question. They contend 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 that 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.
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 the Justice Department request was a pretext.
In a document filed in response to questions sent by New York Attorney General Barbara Underwood (D), 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 the spring of 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 on 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.”
Commerce Department spokesman Kevin Manning said in an emailed statement that Ross was responding to “a question about an RNC campaign email, not a direct question about the citizenship question.” Manning added that Ross “was in fact looking at the RNC email that the Congresswoman provided him during the hearing as he was responding to Rep. Meng’s question and truthfully answered that he had not discussed the RNC email with the White House.”
Meng has called on Attorney General Jeff Sessions to investigate Ross for “possible crimes” related to false statements or representations regarding documents required to be submitted to Congress.
“I don’t like being lied to,” Meng said in a statement, adding, “The entire process around the citizenship question has been mismanaged and rushed.”
In August, a U.S. District Court judge ordered Ross and Gore, the acting assistant attorney general for the Justice Department’s Civil Rights Division, to sit for depositions.
Earlier, Justice Ruth Bader Ginsburg had temporarily stayed a lower-court decision that said Ross had to submit to questioning. Both a district judge and two panels of the U.S. Court of Appeals for the 2nd Circuit have said the depositions should go forward.