Judge Keeps An Eye On SCOTUS As He Blocks Census Citizenship Question

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U.S. District Judge Jesse Furman found himself in an extraordinary position as he handed down a decision Tuesday declaring illegal the Trump administration’s move to add a citizenship question to the census.

As trial in the case was wrapping up in November, the Supreme Court announced it would hear arguments on a dispute in the case in February. More remarkable, still, is that the dispute — over a judge’s order the Commerce Secretary Wilbur Ross, who made the decision to add the question, sit for a deposition — has been essentially rendered moot by Furman’s ruling Tuesday.

It’s unclear exactly what will happen next in the case: whether the Justice Department, as it has with pre-trial procedural issues, will attempt to get an immediate intervention by the Supreme Court, and whether the justices will have time to fully review the case on the merits before the June deadline to print the census questionnaires.

Regardless, while Furman pulled no punches when it came to criticizing the Trump administration’s decision-making process, he was extremely careful in his 277-page opinion and even showed some restraint in its legal analysis. That restraint, experts told TPM, could indicate Furman was thinking about how to protect his decision from a reversal by a higher court, including the Supreme Court.

“This is an exceedingly important opinion on a monstrously important topic — and it’s abundantly clear throughout that Judge Furman is really upset at the way that Commerce and Sec. Ross conducted themselves — but the opinion itself really isn’t overly aggressive,” Justin Levitt, a, professor at Loyola Law School, told TPM in an email.

Taking Off The Table The Contentious Issue At SCOTUS

Furman said clearly and repeatedly that he was able to come to his conclusion that the move was illegal by looking just at the so-called administrative record, which is the collection of internal records offered by the administration reflecting its decision-making process, and not in dispute in the case.

“There’s a lot of evidence Judge Furman reviews beyond that, that reveals the process as a lot more sinister. But the court was extremely careful to only use the comparatively bland material for his primary ruling,” Levitt, who also served in the Obama DOJ civil rights division, said.

What the Supreme Court is scheduled to review next month is whether the judge could order discovery on evidence outside of the administrative record — specifically a deposition of Ross and of a top DOJ official, as well as extra-discovery in the case — to probe Ross’ “mental state” in deciding to add the citizenship question.

For the trial, the Supreme Court blocked Ross’ deposition, but allowed the deposition of DOJ official John Gore and the other additional discovery to move forward.

Suzanna Almeida, a lawyer at the watchdog group Common Cause, said that Furman’s emphasis on the administrative record seemed to be “an effort to insulate from the potential effects of the SCOTUS decision” in the dispute the court is hearing next month.

Doing so, according to the Brennan Center’s Democracy Program counsel Thomas Wolf, suggests that “no matter how the Supreme Court decides the pending question about the challengers’ right to discovery outside the record — the law is ultimately on the challengers’ side.”

An ‘Ironclad’ Ruling On Statuary Issues

Furman declared Ross’ decision a violation of the Administrative Procedure Act and the Census Act. He didn’t rule in favor of the challengers’ claim that adding the question was a constitutional due process violation. He noted pointedly that it’s impossible to know if the challengers would have met their burden of proving a discriminatory intent if they’d been allowed to depose Ross.

Some opponents of the citizenship question were frustrated that Furman did not find a constitutional violation. Thomas A. Saenz — president and general counsel of MALDEF, which has its own lawsuit challenging the question going to trial in Maryland next week — said in a statement that Furman’s decision “fails to accord adequate weight to the ample indications of intentional racial discrimination.”

However, Levitt, noted that the statutory claims were “at heart, far more limited (and jurisprudentially conservative) than some of the constitutional claims,” and here, he said, Levitt said Furman’s rulings were “ironclad.”

An Implicit Response to Justice Gorsuch

Furman — implicitly, but not so subtly — responded to Justice Neil Gorsuch’s characterization that Ross’ unorthodox decision-making process was just a cabinet official trying to cut through “red tape.” Gorsuch used that term — “red tape” — in a partial dissent from a SCOTUS decision in an early dispute in the case, and Furman’s decision made use of it twice. Furman explained how they way in which Ross went about adding the question went beyond cutting “red tape,” and why it violated the law.

“As Judge Furman made clear, Secretary Ross attempted to play fast and loose with numerous well established legal controls on federal agencies in attempt to push through a decision that would have derailed the census, and with it, our democratic system,” Wolf said.

More broadly, Furman’s decision seemed to speak to the movement by “Federalist Society types” to limit the deference and the power that courts grant to administrative agencies, according to Joseph Fishkin, a University of Texas, Austin Law School professor.

“Judge Furman has written this opinion in a way that gives appellate judges sympathetic to those ideas a clear choice to make,” Fishkin said in an email to TPM. “Either uphold his opinion, or else, make new law giving sweeping powers to an administrative agency in a way that would fly in the face of this longstanding Fed Soc priority.”

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