“The Census Case Is Shaping Up to Be the Biggest Travesty Since Bush v. Gore”

I have written this piece for Slate. It begins:

The government’s conduct in the pending Supreme Court case about adding a citizenship question to the census has gone from indefensible to outrageous. In the case, which is likely to be decided this week, Solicitor General Noel Francisco on Tuesday asked the Supreme Court to become complicit in a cover up of discriminatory activity by doing something the court does not and cannot do: decide a legal issue that is not before it. If the court does so, any pretense of the legitimacy of the decision will be gone.

It concludes:

To be absolutely clear, the Equal Protection claim is not currently before the Supreme Court in the case it is about to decide. Nonetheless, in two last minute filings with the Supreme Court, Francisco has asked the Court to decide the question. “The Fourth Circuit’s order underscores the need for this Court to address the equal-protection claim and the immateriality of the Hofeller files in its disposition of the above-captioned case so that the lawfulness of the Secretary’s decision can be fully and finally resolved.”

This is outrageous. The issue has not been fully briefed. It was not the subject of oral argument. It involves evidence for which there has been no fact-finding. For the Supreme Court to decide the issue on this basis is the definition of lawlessness. It is not how the Supreme Court normally does business, and the solicitor general should know better. If the court starts doing this it becomes no more than a branch of the Trump administration.

The government claims the printing deadline is imminent, but the Fourth Circuit found that the printing can actually wait until October. This issue deserves full and fair vetting. The Supreme Court can deal with any injunction from the district court or the Fourth Circuit in later filings after the trial court finds all the facts about possible discriminatory intent from the Hofeller evidence.

Indeed, in another case of similar political import, a Supreme Court majority declared the following: “The press of time does not diminish the constitutional concern. A desire for speed is not a general excuse for ignoring equal protection guarantees.” That case was Bush v. Gore, the case ending the disputed 2000 presidential election and handing the election to Republican George W. Bush over Democrat Al Gore. There, the justices of the Supreme Court let politics get in the way of a fair decision. It looks like history may be about to repeat itself.

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