With the Supreme Court apparently ready to rule this week on a historic controversy over the 2020 census, a federal trial judge on Monday pushed to last-minute prominence a claim that the Trump Administration acted out of racial bias in planning to ask everyone next year about their citizenship.
The challengers to the citizenship inquiry now appear to be a considerable step closer to proving in court their claim that Commerce Secretary Wilbur Ross decided on the plan mainly to discriminate unconstitutionally against Hispanics in the population count. A key factor, though, is whether there will be time for that claim to develop.
The outcome of the entire controversy will have a major impact on the distribution of seats in the U.S. House of Representatives, on drawing election districts at all levels of government, and on distribution of hundreds of billions of dollars in federal money. The actual accuracy of the population count probably would be directly affected.
A day for decisions by the Justices came and went on Monday without a ruling on whether the Census Bureau can legally add the citizenship question to census forms. The next potential day for rulings is Wednesday, and there probably will be at least one other decision day late in the week before the Justices recess for the summer.
In the meantime, attention shifted to the federal trial court in Greenbelt, MD, of District Judge George J. Hazel, He issued an opinion to explain his decision last week to allow the reopening of the census case that he had previously decided, to explore anew the racial bias argument.
Judge Hazel treated as credible the new evidence that the challengers have put forth to buttress their claim of discrimination. He turned aside all arguments by the Trump Administration against considering that new evidence. His description of the details was quite positive for the challengers.
Judge Hazel wrote that it was a “weighty” issue “whether the Secretary’s true reasoning was driven by discriminatory animus.” But, he added, “it is becoming increasingly difficult to avoid seeing that which is increasingly clear. As more puzzle pieces are placed on the mat, a disturbing picture of the decisionmakers’ motives takes shape.”
If he is allowed by higher courts to move forward on that issue, Judge Hazel said, he would reopen the case for a period of no more than 45 days for gathering new evidence, followed by a hearing and then “a speedy ruling.”
He did concede, though, that his plan to move forward might become “moot” (legally a dead letter) because of the procedural situation that now surrounds the controversy over the census.
That posture is uncertain because of these potential factors:
First, the Supreme Court could issue its own ruling this week, either upholding or blocking the administration plan to add the citizenship question. If it blocks the question, that would end the controversy, no matter what the reasoning for doing so. If, however, it votes to allow the question, then its reasoning may well not end the dispute altogether.
Second, the Court could say nothing in its forthcoming opinion about the claim of racial discrimination. That has not been a part of the Justices’ review up to now, and the Justices could simply ignore it. However, the Trump administration did ask last week that the new opinion deal with that question, too. If it does so, and rejects the challenge, there would be nothing left for Judge Hazel to do.
Third, Judge Hazel can take no action, one way or the other, until the U.S. Court of Appeals for the Fourth Circuit, where the census case tried in his court is pending on appeal, sends that case back to the Maryland trial court. The challengers asked it to do so, and a decision likely is imminent. The administration is due to file a brief there later on Monday, and probably will oppose a return of the case.
Fourth, timing could become a deciding factor, because the Census Bureau says it needs to know by the end of this month what it will be allowed to put on the census forms. The challengers dispute that deadline, citing what they say is evidence that the forms actually do not need to be finalized until the end of October.
If the Supreme Court in its ruling this week were to declare that June 30 is the deadline for the forms, that presumably could foreclose any further review by Judge Hazel. Under the plan he outlined in his new opinion, that deadline could not be met by the further review.
One of the effects of Judge Hazel’s temporary assessment of the challengers’ new evidence could be that it would put new pressure on the Justices to analyze the race issue itself, or to rule that the evidence cannot be brought into the controversy at this late date.
It would be quite unusual, with the deeply controversial claim of racial bias hanging over the controversy, for the Justices to go ahead and rule without taking it into account in any way.
Update:
Trump Administration lawyers, in a court filing, spelled out the details of how they want the Supreme Court to put a quick end to the racial discrimination issue that now surrounds the census. It is a scenario that probably could be done by the Justices in one or two sentences.
The new document, submitted to the Fourth Circuit Court, argued that there could be nothing left of that issue for a Maryland trial judge to explore after the Supreme Court has acted this week.
“The Supreme Court’s forthcoming decision,” the document said, “is likely to completely resolve” the entire controversy over the plan to add a citizenship question to the census, “eliminating the need for further proceedings in the district court.”
Here is how the Trump team foresaw that as unfolding:
The Supreme Court would quickly deny a pending plea by challengers who are opposed to the citizenship inquiry to reopen the race bias issue, while the Court at the same time would vote to allow the Census Bureau to include that question on next year’s forms.
That would imply that the Justices saw nothing in the challengers’ new evidence of a racial motive. Then, the filing added, “there would be no basis for [lower courts] to take a different approach.”
That appears to be a quite plausible outcome. The Supreme Court is expected to announce the census decision by the end of this week. And, because the race issue has emerged so late in the review process, the Court would have little opportunity to explore it at any length. In fact, the Justices at this point could dispose of that issue with a brief order containing little explanation.
Such an order, however, would have to be explicit enough to let the lower courts know that the controversy was definitely at an end, to prevent those courts from interpreting such a brief order as not actually foreclosing their further review. The Supreme Court clearly would have the authority to conclude the entire controversy, but would have to do so in a way that was clear.
Lyle Denniston has been writing about the Supreme Court since 1958. His work has appeared here since mid-2011.
