The Supreme Court gave the federal government a partial victory tonight in a dispute over discovery in the challenge to the government’s decision to reinstate a question about citizenship on the 2020 census. Without any publicly recorded objections, the justices kept on hold plans to depose Wilbur Ross, the Secretary of Commerce, about the decision. And although the justices rejected the government’s request to block other discovery in the case – specifically, the deposition of John Gore, the acting head of the civil rights division of the Department of Justice, and additional discovery outside the administrative record for the decision – they hinted that the government might be able to get broader relief further down the road….
Tonight the full court acted on the government’s request. First, the justices granted the government’s plea to block the deposition of Ross, relief for which the government needed at least five votes. There were no publicly recorded dissents from this part of tonight’s order, so there is no way to know whether all of the justices supported this outcome or whether some were opposed but opted not to announce that opposition.
Ross’ deposition will remain on hold at least until next Monday, October 29, at 4 p.m.; if the federal government files a brief seeking review of the district court’s ruling, the deposition will remain on hold until the justices rule on the new request for review and, if that request is granted, rule on the merits of the discovery dispute.
The justices rebuffed the government’s request to block the deposition of Gore and other discovery outside the administrative record. However, the justices made clear in tonight’s order that their denial of the relief would not prevent the government from addressing those issues in its brief seeking review of the district court’s ruling.
The Supreme Court temporarily blocked a court order on Monday that would have required Wilbur Ross, the secretary of commerce, to give a deposition in a lawsuit challenging the addition of a question concerning citizenship to the 2020 census.
As is the Supreme Court’s practice in ruling on stay applications, its brief order gave no reasons. The court said its order staying the deposition would stand until it resolved a petition from the Trump administration. A trial in the case is scheduled to start next month…
On Monday, Justice Neil M. Gorsuch, joined by Justice Clarence Thomas, said the Supreme Court should have gone further, shutting down all pretrial fact-gathering in the census case. Justice Gorsuch added that there was no indication of bad faith in Mr. Ross’s conduct.
“There’s nothing unusual about a new cabinet secretary coming to office inclined to favor a different policy direction, soliciting support from other agencies to bolster his views, disagreeing with staff or cutting through red tape,” Justice Gorsuch wrote. “Of course, some people may disagree with the policy and process. But until now, at least, this much has never been thought enough to justify a claim of bad faith and launch an inquisition into a cabinet secretary’s motives.”