Supreme Court Blocks Deposition of Commerce Secretary on Census

WASHINGTON (CN) – Extending a stay, the Supreme Court shielded Commerce Secretary Wilbur Ross on Monday night from having to testify about why he is adding a citizenship question to the 2020 census.

Wilbur Ross testifies at his Jan. 18, 2017, confirmation hearing before the Senate Commerce Committee. Ross was confirmed as commerce secretary on Feb. 27. (AP Photo/Manuel Balce Ceneta, File)

Though the order is unsigned, a concurring opinion from Justice Neil Gorsuch calls it “highly unusual, to say the least,” that the government is expected to face a trial about this matter, one of agency action, beginning on Nov. 5.

“Leveling an extraordinary claim of bad faith against a coordinate branch of government requires an extraordinary justification,” Gorsuch wrote, joined by Justice Clarence Thomas. “As evidence of bad faith here, the district court cited evidence that Secretary Ross was predisposed to reinstate the citizenship question when he took office; that the Justice Department hadn’t expressed a desire for more detailed citizenship data until the Secretary solicited its views; that he overruled the objections of his agency’s career staff; and that he declined to order more testing of the question given its long history. But 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. 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.”

In the Southern District of New York, where 18 states have brought a lawsuit alleging that Ross added the citizenship question to the census for political and discriminatory reasons, U.S. District Judge Jesse Furman has compelled the deposition of Assistant Attorney General John Gore at the Justice Department.

The government had also sought to stay Gore’s deposition, as well that highlighted the “strong showing of a claim of bad faith,” but Monday’s order denies such relief.

Dissenting in part, Gorsuch and Thomas said they would have gone the extra mile and stayed all extra-record discovery in the case.

“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: each stems from the same doubtful bad faith ruling, and each seeks to explore his motives,” Gorsuch wrote. “As to the hardships, the court apparently thinks the deposition of a cabinet secretary especially burdensome. But the other extra-record discovery also burdens a coordinate branch in most unusual ways. Meanwhile and by comparison, the plaintiffs would suffer no hardship from being temporarily denied that which they very likely have no right to at all.”

Gorsuch also suggested that Judge Furman should “postpone the scheduled trial and await further guidance,” saying such developments are common when the court indicates that it is likely to grant certiorari.

“But because today’s order technically leaves the plaintiffs able to pursue much of the extra-record discovery they seek, it’s conceivable they might withdraw their request to depose Secretary Ross, try to persuade the trial court to proceed quickly to trial on the basis of the remaining extra-record evidence they can assemble, and then oppose certiorari on the ground that their discovery dispute has become ‘moot,’” the opinion continues.

Gorsuch emphasized that the court still has “other, if more involved, means exist to ensure that [its] review of the District Court’s bad faith finding is not frustrated.”

“I only hope they are not required,” he warned.

Though the census has not inquired about citizenship status since 1950, Gorsuch emphasized that the question has been a feature of “most censuses in our history.”

New York and the other states challenging the question contend that Ross added the citizenship question to discourage participation by immigrants of color. An undercount of these populations, which traditionally vote Democratic, would likely reduce the political power and federal funding of blue states for a decade.

Amy Spitalnick, a spokeswoman for New York Attorney General Barbara Underwood, kept her cards close to her vest on Monday’s order. “We welcome the court’s decision to allow us to complete discovery in the case, with the exception only of Secretary Ross’ deposition, which remains on hold pending further briefing,” Spitalnick said.

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