The End Game Possibilities for the Census Case

The census decision is coming tomorrow from the Supreme Court. Most likely in my view is a 5-4 decision upholding the inclusion of the citizenship question, without addressing equal protection issue. Alito (if he writes) could include dicta to try to prejudge that issue. Alito setting a time bomb to be used in another case is one of his specialties, as I wrote about here.

If this happens, then I expect if 4th circuit (or district court) excludes citizenship question on equal protection grounds, there will a battle over the summer at the Supreme Court over the case. If that happens, the Court might decide the issue without oral argument or opinion. That’s been dubbed by Will Baude as part of Court’s “shadow docket” and it is very problematic in terms of the Court fully airing issues and explaining reasoning. Far better would be an early September oral argument, with a decision by October (before the real print deadline).

The Court could also NOT decide census case at all tomorrow, and could send it back to trial court for a limited remand on evidence of bad intent from the Hofeller files. It could then hear this case again and 4th Circuit case in September. I don’t think that’s a likely outcome but it is possible. If Alito has opinion, allows inclusion of question, strongly hints at rejection of equal protection claim in separate 4th circuit case, I expect bitter dissents (especially from Sotomayor). We should know in 23 hours.

Update: Josh Blackman offered his own thoughts on the endgame here.

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