When the U.S. Supreme Court added a second day, then a third, this week to release opinions, Court-watchers figured one decision very likely to come down was in Department of Commerce v. New York, involving the Trump administration’s expedited plea to set aside three district court rulings preventing the addition of a citizenship question to the 2020 Census. The case was accepted speedily on grounds that the government needed to send out Census forms by July 1. Oral arguments, which were universally interpreted as suggesting a likely victory for the administration, were held on April 23.
But with just 12 decisions left on the SCOTUS docket for this term … so far, no decision on the Census. The term is likely to end by the beginning of July. Time’s a-wasting. What’s up with the delay?
Other than the fundamental fact that SCOTUS takes its own sweet time on everything, the most obvious explanation for delays in this decision is the intervening appearance of new evidence supporting the Census challengers’ contention that the administration’s rationale for the citizenship question is a big fat lie. They argue that the real motive is a desire to reduce minority (and particularly immigrant) participation in the Census. And that would have big, real-world partisan implications, as I explained in April:
The administration’s own estimates show that as many as 6.5 million people — many of them recent immigrants fearful of arrest and/or deportation if they become visible — won’t answer the Census at all if there is a citizenship question. Since federal funding formulas typically depend on Census figures, states with serious undercounts will get screwed to the tune of many billions of dollars. Congressional and state legislative reapportionment and redistricting are also based on Census figures; California could lose congressional seats and electoral votes, and areas with sizable immigrant populations within a variety of states could lose clout in Congress and in state legislatures.
The new evidence bearing on this question arose from the bizarre circumstance of digital files recently discovered by the daughter of the late GOP gerrymandering wizard Thomas Hofeller, suggesting that he had given the administration a bogus voting-rights-enforcement argument for the citizenship question even as he demonstrated its strictly partisan benefits. And as SCOTUSblog’s Amy Howe explains, that’s led to a whole new back-and-forth between the administration and those challenging the citizenship question:
[T]he challengers notified the Supreme Court about new evidence suggesting that Thomas Hofeller, a Republican redistricting strategist, was involved in the decision to add the citizenship question to the census, to provide whites and Republicans with an advantage in future elections. The challengers returned to the Supreme Court approximately two weeks later, telling the justices that the [New York] district court had concluded that the new allegations were “serious,” but that its hands were tied while the case was pending before the Supreme Court.
The challengers asked the justices to either uphold the district court’s ruling barring the government from using the citizenship question or send the case back to the district court for more factfinding —specifically, about whether officials in the Department of Commerce, including Secretary of Commerce Wilbur Ross, shared Hofeller’s motives for adding the question.
Nobody knows how the Court has reacted to this plea or to the underlying new evidence, which a second district court in Maryland has deemed relevant. But the administration is clearly worried, asking SCOTUS just yesterday to help them out, Howe notes:
In today’s filing, the government dismissed the challengers’ contention that Hofeller was the real author of a letter from the Department of Justice to the Department of Commerce asking for the citizenship data as a “conspiracy theory” that was “implausible on its face.” But in any event, the government continued, the challengers are “not entitled to a do-over now,” especially when they either “already knew or, with minimal diligence, easily could have discovered” the substance of the evidence “months ago.”
And after a district court in Maryland on Wednesday ruled that another look at whether the government intended to discriminate against immigrants by adding the citizenship question is warranted, the government urged the Supreme Court to make clear in its opinion that there was no intent to discriminate.
Another question still in dispute is the actual urgency of the decision. Opponents of the citizenship question claim the government could actually mail out its Census questionnaires as late as October and still meet its ultimate deadlines. The administration argues further delay would require “exceptional resources.”
So, for all we know, SCOTUS will deliver its expected decision on Monday and resolve the case as though Hofeller’s files had never been discovered or shared. It could, however, order a new round of fact-finding, and then we’ll learn whether a relatively brief delay in Census preparations truly would be calamitous. Given the consequences of the result, it’s even possible this is the kind of decision that will trigger the chief justice’s fears about the credibility of the Court in highly politicized cases. But something’s got to give very soon.