“The Odd Supreme Court Grant in the Census Citizenship Question Case”

Marty Lederman:

So what’s the point of the Supreme Court’s cert. grant?  Why didn’t the Court at least wait until Judge Furman issued his judgment?  If the district court has issued its judgment before December 17, when the government’s opening brief in the Supreme Court is due, does the Court expect the parties simply to treat the proceedings in the Court as a sort of direct appeal from the district court on the merits–transforming the petition into a de facto petition before judgment of sorts–thereby circumventing the court of appeals?  That seems unlikely.  (And that’s assuming the district court rules against the government.  If Judge Furman rules in favor of the government, what happens to the Supreme Court case?  Presumably the plaintiffs–unlike the government(?)–would be required to initially appeal to the court of appeals.  But if so, why is the government’s evidence-based petition ripe for SCOTUS review now?)

And if Judge Furman’s judgment comes after December 17, what are the parties supposed to do about it during their remaining briefing schedule in the Supreme Court?  Begin treating the SCOTUS case as if it were an appeal on the merits?  Simultaneously go up to the Second Circuit on the merits while the ancillary evidentiary question about what evidence the district court should have considered is pending in the Supreme Court?

I sense that I must be missing something here, but I’ve asked these questions of a bunch of people following the case, and no one’s had a clue about what the Court has in mind.  [One wild speculation:  Perhaps the Court fully expects to dismiss the petition as moot once Judge Furman issues his judgment, but is merely trying to spur him to rule expeditiously–something the Court presumably cannot simply order a trial judge to do–to make it more likely the appellate courts can opine on the merits before the end of June.  If that’s the reason, however, it seems unnecessary–as far as I know Judge Furman has been moving things along very briskly, with the summer deadline in mind.]

Meanwhile, just a few hours ago (yes, on a Sunday), the government defendants asked Judge Furman to revisit his prior decision to proceed toward final judgment, and moved him to stay all proceedings until the Supreme Court issues its decision on the evidentiary questions sometime between next March and June.  I must confess that I don’t see the point in such a delay, especially in light of the court’s determination to specify, in his forthcoming judgment, whether and how the plaintiffs’ claims are affected by any materials outside the administrative record.  A four- to seven-month delay before the court enters its final judgment would effectively preclude the courts from being able to carefully consider the merits of the case before the new census forms are to be printed up in June.  Why would that be (in the government’s words) “the most prudent course”?  [UPDATE:  Judge Furman has instructed the plaintiffs to file their response to the government’s new motion by 4:00 p.m. on Tuesday, November 20.]

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