If the procedural circumstances around the Supreme Court’s census case weren’t confusing enough, an unexpected move the court made on Wednesday afternoon made things more complicated.
The court, on its docket for the census citizenship question case, indicated that it would consider Thursday a request by those who challenged the citizenship question in New York that the Supreme Court’s decision be delayed so that the case be sent back to the trial judge there.
The request to send the case back to the trial court, made two weeks ago, is separate from the latest developments in the census case brought in Maryland.
But all the new chaos can be traced back to the fallout from the discovery of the files of a now-deceased GOP consultant’s hard drives that linked him to the Trump administration’s push to change the census.
The notice on the Supreme Court’s docket says that the petition from the New York challengers will be circulated at a private conference the justices will hold on Thursday.
It is not clear whether that means the court will not hand down the decision in the New York case after all on Thursday, even though it’s said that Thursday will be the last day of opinions this term. A former clerk for ex-Justice Anthony Kennedy suggested on Twitter that the move could also mean that the court will issue a memo after its census case opinion that cleans up any lingering questions — including whether the new evidence warranted a delay in the Supreme Court opinion — around the case.
Not necessarily–it could also mean it is slated to be dealt with in the “post-opinion clean up memo” (where the chambers that drafted an opinion recommends disposition of any case + motions held for the case).
— Leah Litman (@LeahLitman) June 26, 2019
Likewise NPR Supreme Court reporter Nina Totenberg cautioned that the move may just be part of the court’s end of the term routine:
#SCOTUS routinely adds to conference list a pending motion, and since tomorrow is the last scheduled conference before the fall, it basically had to be added. This does not necessarily telegraph the outcome of the opinion. https://t.co/7OlgkmAunx
— Nina Totenberg (@NinaTotenberg) June 26, 2019
In addition to their June 12 request to delay and remand the case, the New York challengers have also been flagging for the Supreme Court the developments in the Maryland case. There, the challengers convinced a federal judge to re-open the case to consider the new evidence from the consultant, Thomas Hofeller’s files. The evidence could prompt the judge in Maryland to reverse his finding of a lack of evidence that the census citizenship question was discriminatory — an issue that was not before the Supreme Court as it reviewed the New York census case. The Justice Department has asked the Supreme Court to resolve the discriminatory motive question when it hands down its opinion in the New York case — a move the Maryland challengers oppose because it wasn’t formally briefed for the justices.
According to Leah Litman, the Kennedy clerk, the Supreme Court could address that with whatever it does with the petition it is considering on Thursday.
I can imagine a footnote: “Late breaking evidence not in the record in the case we are reviewing isn’t relevant. PS: try anything CA4/district court and we’re got our stay docket over the summer.”
— Leah Litman (@LeahLitman) June 26, 2019
