Having secured only a partial victory at the Supreme Court in blocking certain depositions and discovery in the census citizenship question case, the Justice Department is asking a federal judge in Manhattan to delay the start of trial next month, so that the administration can have another go at getting the Supreme Court to intervene.
The request, filed Tuesday evening, asks U.S. District Judge Jesse Furman to put the trial on hold, and to also delay the pretrial proceedings he had scheduled, which include pretrial filings due this week.
It comes after the Supreme Court issued an order Monday night halting plans to depose Commerce Secretary Wilbur Ross, but denying DOJ requests to put on hold another deposition and as well as additional discovery ordered by the lower court judge.
The Trump administration has argued that the lower court’s finding that Ross acted in “bad faith,” which was used to justify the depositions and discovery, was incorrect.
The Supreme Court gave the Justice Department until next Monday to file a request that the Supreme Court fully consider blocking Ross’ deposition. It also said its decision to let the Gore deposition and the additional discovery move forward “does not preclude the applicants from making arguments with respect to those orders.”
The Justice Department, in promising that that a new petition to the Supreme Court is “forthcoming,” is now asking the federal judge to pause “all extra-record discovery”
“Any [Supreme Court] order granting the government’s petition would substantially affect the further proceedings in this Court, including whether extra-record discovery would be permissible or whether review would take place on the administrative record,” the Justice Department argued in the request.
The administration’s opponents in the case — which is a consolidation of an ACLU lawsuit and a multi-state lawsuit let by New York — said in a status report Wednesday that they opposed the move to delay the trial.
“Fourteen judges have thus far rejected Defendants’ efforts to halt these proceedings,” they said.
The Justice Department’s new request leans heavily on a partial dissent written by Justice Neil Gorsuch, and joined by Justice Clarence Thomas, in which the justices said they would have gone farther than the Supreme Court by halting the Gore deposition and the discovery order as well.
“Justice Gorsuch noted that, with respect to likelihood of success on the merits, there was no reason to distinguish the Secretary’s deposition from the depositions of other senior executive officials because ‘each stems from the same doubtful bad faith ruling, and each seeks to explore his motives,'” the new filing said.
The Justice Department also complained about the amount of work it will be putting into trial prep, “conservatively” estimating that 3,520 attorney hours will be spent on preparations.
“There is no need to further tax the resources of the Court and the parties by proceeding with a trial on evidence that the Supreme Court may ultimately deem improper,” the Justice Department said.
The case in New York is one of numerous lawsuits the Trump administration is facing over its move to add a citizenship question to the 2020 census, an addition that risks discouraging immigrant participation in the survey. An undercount of those communities would have major implications for how political power and federal funding is doled out in the country.
Ross initially claimed, including in congressional testimony, that the question was added at the behest of the Justice Department, which said it wanted the addition for Voting Rights Act enforcement. Internal records released in the litigation have contracted that as well as other claims Ross has made about why he decided to add the question.
Read the full request below: