Surprise Supreme Court Maneuver in Wilbur Ross Census Dispute

By Kimberly Strawbridge Robinson

The U.S. Supreme Court surprised many court watchers Friday by how it fast-tracked onto its docket a dispute over the addition of a citizenship question to the 2020 census.

The justices used an uncommon maneuver in converting a government request for them to stop the deposition of Commerce Secretary Wilbur Ross in a lower court trial into formal request for case review that they then granted despite no one asking them do go that far.

Arguments are set for Feb. 19.

Aaron Streett, a former Supreme Court clerk now at Baker Botts LLP in Houston, told Bloomberg Law in a previous interview that the court will take this kind of step to correct mistakes by filers or to speed up review in high-profile cases.

The census case fits within the latter category, as litigation over the census needs to be wrapped up by spring.

What’s crucial here is that the Trump administration’s stay petition involving Ross likely addressed much of the merits of the case, so eliminating the requirement to file a formal petition for Supreme Court review, called a petition for writ of certiorari, or cert, can save time.

The administration is trying to limit evidence that can be used in lawsuits— including the Ross deposition—challenging the citizenship question, which has been the subject of a trial in federal court in New York, Bloomberg reported.

Ross initially stated the question was added at the request of the Department of Justice to better combat voter discrimination. That should be the end of the matter, the government said in asking the high court to stop the deposition.

But the plaintiffs say the real reason is to discourage minority populations from responding to the census, leading to under-representation, the challengers say. They want to press Ross about his initial justification.

The census is used determine the distribution of seats in the the U.S. House and to “distribute more than $675 billion in federal funds each year,” according to the Census Bureau.

The case In re Dep’t of Commerc, U.S., No. 18-557, review granted 11/16/18.