Moving to keep in check the troubling new race bias issue that could affect the 2020 census, the Trump Administration asked the Supreme Court on Thursday to deal with that question in an imminent ruling about the next population count.
It was a highly unusual request because both sides have so far had little to say to the Justices about the race question as a factor on whether a question about citizenship can be asked on next year’s census forms. The race factor is a serious constitutional question, and the Court usually likes a full airing of such a question before it feels prepared to rule.
Challengers to the citizenship question in recent weeks have mounted a legal campaign in three separate courts to press anew their argument that hostility to Hispanics and other people was a key motive for Commerce Secretary Wilbur Ross when he decided to put a citizenship inquiry on the 2020 forms.
While those challengers have asked the Supreme Court to send the pending case back to lower courts for a further review of that claim, they had not asked the Justices to rule themselves on it at this point. Up to now, in fact, the claim has played no role in the Supreme Court’s current review.
One lower court is moving rapidly to explore the renewed claim, possibly complicating a quick resolution of the legal and constitutional issues surrounding the census citizenship controversy. Another lower court has chosen to delay any examination of the claim.
But administration lawyers, answering the race claim in a new filing at the Supreme Court on Thursday, vigorously denied that Ross had any such motive but then went further, taking the bold step of requesting that the Justices rule now on it – presumably without any further written arguments on the point.
“To avoid addressing the issue in an emergency posture,” after the lower court had ruled on it, the Justices “may choose to address the equal-protection claim in its opinion to make clear” that none of the evidence the challengers are relying on will “demonstrate any racial animus on the part of Secretary Ross,” the new filing suggested.
The filing noted that the Administration, in the written legal brief it submitted in March in the pending case, had commented on the race claim in case the challengers or lower courts were to rely on that to block anew the citizenship question. However, that prior brief contained only a single paragraph on the bias claim, and the challengers did not react to it in their written briefs.
As matters have since developed in the lower courts, in response to the challengers’ claim that they have new evidence that proves racial discrimination, that issue has been gaining new emphasis. That has raised the prospect that constitutional doubt could hang over planning for the census even if the Administration were to win the case as it has stood in the Supreme Court in a process in which, up to now, the race issue had not actually been weighed.
In fact, as recently as Thursday morning, it had appeared that the race factor would create a whole new issue in a lower court, so that the Justices would then have to take it up during their summer recess, in order to have all issues settled quickly so that the Census Bureau could make final plans on what questions it can legally ask on the census forms.
That was the prospect that, by its filing on Thursday afternoon, the administration sought to head off by seeking a definitive ruling by the Justices now, on all issues.
After that document was filed, the Court’s clerk formally circulated among the Justices that filing along with the challengers’ earlier plea for a return of the case temporarily to a lower court for a new look.
It is unknown when the Justices will act on those new filings.
Lyle Denniston has been writing about the Supreme Court since 1958. His work has appeared here since mid-2011.
