After filings at the Supreme Court on Monday in the census question case, it seems possible the Justices could hear arguments at a late date in the current term if the case is accepted again. But would those arguments happen in May?
The difference between late April and mid-May for census case hearings may seem to be insignificant, but the Justice Department says the Census Bureau needs to finalize questionnaires by June 30 to keep the census on track for its 2020 deadline. In October 2017, the Census Bureau estimated its 2020 survey could cost $15.6 billion, but that was before the dispute over the citizenship question added to the 2020 survey became a factor.
The question for court watchers is two-fold. The first question is if four Justices will vote in a private conference on Friday morning to put the census dispute back on their arguments calendar. A previous version of the case had been set for arguments on February 19. But a federal court ruling made the initial case a moot point, and on January 18, the Court issued an order canceling those arguments, pending further orders from the Court.
Related Story: Supreme Court likely to act this week on census dispute
Since then, the Trump Administration has urged the Court to reconsider the case, Department of Commerce v. State of New York, by taking an appeal directly and bypassing the Second Circuit Appeals Court.
The second question is if the case is accepted, when will it be argued? Timing is important to the Justice Department. “Specifically, if the Court grants the petition following either the February 15 or the February 22 conference, it should order expedited merits-stage briefing so that the case can be heard either at the end of the Court’s regularly scheduled April sitting or at a special sitting in May,” the Justice Department concluded in its court petition.
On Monday, five other petitions were filed at the Supreme Court. The State of New York, responding to the Justice Department petition, submitted its own suggested briefing schedule. New York state agreed with the Trump Administration that if the case were accepted, arguments should be heard on April 24 unless the Court decided its April calendar was full. Then, it felt that Friday, May 10, would be a good choice for arguments.
The Supreme Court released its April schedule also on Monday, and it has 12 cases set for arguments on six days in April. Usually, the Court hears arguments on two cases each morning. But in April 2018 and April 2017, the Court had one day in April when it heard three cases. The Court heard arguments at 1 p.m. on those days.
The six cases on those two dates were accepted by the Court in mid-January, giving attorneys three months to prepare their cases. If the Court were to accept the census dispute on Friday, the Justice Department and the New York state would have little more than two months to prepare for a late April court date.
According to records on the Supreme Court’s website, Chief Justice John Roberts has only scheduled two argument dates outside the Court’s regular calendar since he was confirmed by the Senate in 2005. On May 18, 2006, the Justices heard a reargument in Hudson v. Michigan. At the time, Lyle Denniston, writing for SCOTUSblog, said the Court may have been divided on the initial case and the arrival of Justice Samuel Alito on the bench after initial arguments was a factor.
And on September 9, 2009, the Court reargued Citizens United v. Federal Election Commission after Justice David Souter announced his retirement after initial arguments and the Court presented different questions in the case in late June.
The last time the Court acted on an expedited basis to hear a case that wasn’t reargued after April and decided it before July was Swidler & Berlin v. United States in 1998, a case about attorney-client privilege related to the Starr investigation. The Rehnquist Court took the case on March 30, 1998, heard arguments on June 8, 1998, and announced a unanimous decision in late June.
In 2003, the Supreme Court accepted an appeal in McConnell v. Federal Election Commission after a federal appeals court ruled on the constitutionality of the McCain-Feingold Act in May 2003. Arguments were heard on September 8, 2003, with a decision following in December.
In all since 1969, the Court has only heard 12 cases outside of its normal hearing calendar after April and before October, according to a listing of official argument transcripts on the Court’s website. Among those cases were landmark decisions such as New York Times v. Sullivan, United States v. Nixon, United States v. Eichman, and the previously mentioned McConnell and Citizens United decisions.
Scott Bomboy is the editor in chief of the National Constitution Center.
