First, the Solicitor General’s request would require this Court to render an improper advisory opinion on issues that have not been briefed or argued before this Court, relating to cases that are not before this Court, based on a trial record that is not before this Court. The Solicitor General filed a Petition for a Writ of Certiorari Before Judgment to the Court of Appeals for the Second Circuit in Department of Commerce, et al. v. New York, et al., No. 18-966, and a Petition for Writ of Certiorari Before Judgment to the Court of Appeals for the Ninth Circuit in the related case of Ross v. State of California, No. 18-1214. The Solicitor General could have, but did not file a similar Petition in LUPE and Kravitz. Because the Solicitor General did not do so, the full record in these consolidated cases is not before this Court and there is no basis for this Court to adjudicate the equal protection claims asserted in LUPE and Kravitz.
Second, the only evidence in the record concerning the deadline to finalize the 2020 Census questionnaire is the testimony of Census Bureau Chief Scientist, Dr. John Abowd, who testified that with additional resources, the final date for locking down the content of the census questionnaire could be extended to October 31, 2019. J.A. 906. The Solicitor General’s assertion that June 30 is an immovable deadline is unsupported by the record and does not require this Court to adjudicate
an issue that is not properly before it.
I wrote about the first point yesterday at Slate.
UPDATE: The Supreme Court clerk has removed the letter, apparently because it was not accepted for filing. You can read the letter here.