Plaintiffs have filed this unusual motion in the Supreme Court asking for the Court to send the case back to the district court to engage in factfinding over whether government officials lied about why Secretary Ross decided to include the citizenship question on the census. This is based on newly-discovered evidence on the Hofeller hard drives.
Back on May 30 I had noted the problem facing the plaintiffs: the Supreme Court does not hear evidence for the first time; it reviews evidentiary findings of the lower courts. I said there was no good way to get this information before the Supreme Court, especially given the impending printing deadline.
The plaintiffs now say the printing itself could be delayed until October rather than done in July as had been expected. The Court could send the case to the lower courts for a few months, and then decide the case again (perhaps scheduling a rare oral argument in August or September).
What’s the Court likely to do? This is a really unusual procedure, so that alone makes this a motion unlikely to be granted. But it is more complicated. The political stakes though are extraordinarily high. If the Court is otherwise going to side with the government (in a case that I think all reasonable observers must think the government should lose 9-0), this new development (and the failure to allow factfinding about it) makes things much worse. It is not just that we don’t know the official reasons why Secretary Ross included the citizenship question. It is that we now know it was to be included to help push white voting power against Latinos, the exact opposite of what the government claimed was the purpose of including the question.
As I asked at Slate back in March, the question is which John Roberts “will show up: the solid conservative who wrote the opinion to kill a key provision of the Voting Rights Act and voted with four other conservatives to allow corporate money into candidate elections, or the institutionalist chief justice who is desperate to show that there remains a distinction between law and politics.”
We may have our answer by next week.