Supreme Court halts... Of course...

Supreme Court halts Wilbur Ross deposition

By JOSH GERSTEIN

The Supreme Court has effectively halted a ruling requiring Commerce Secretary Wilbur Ross to testify in suits challenging his decision to add a question on citizenship to the 2020 Census, but most of the justices declined for now to grant the Trump administration's other requests to limit the challengers' access to information about Ross' action.

Two of the high court's conservative GOP appointees, Justices Neil Gorsuch and Clarence Thomas, signaled that they would have gone further to halt a trial planned to begin in two weeks in a federal court in Manhattan.

In an emergency stay application, the Justice Department has argued that the planned depositions of Ross and a senior official in Justice's civil rights division represented an unwarranted intrusion into the internal decision-making of the executive branch. Federal government lawyers have also fought orders to turn over documents related to the move to add the citizenship question, which last appeared on a nationwide, decennial census in 1950.

Lawyers for states, localities and civil rights groups objecting to Ross' move say there was no legitimate reason for his action. U.S. District Court Judge Jesse Furman said there were "strong" signs that the decision may have been made in "bad faith" and for reasons other than the official ones described by the federal government.

In the ruling Monday night, the Supreme Court said Ross's planned deposition would remain on hold as long as the Justice Department files a formal petition within a week asking the justices to review the case.

It was not immediately clear whether the ruling meant the trial would go forward as scheduled Nov. 5. Language in the high court's order suggested it was possible that the justices might take further steps in the case that might avert the trial.

However, Gorsuch wrote a partial dissent, joined by Thomas, saying the court should have blocked all the efforts by Ross' critics to seek testimony or other records about his decision.

"There’s nothing unusual about a new Cabinet secretary coming to office inclined to favor a different policy direction, soliciting support from other agencies to bolster his views, disagreeing with staff, or cutting through red tape. Of course, some people may disagree with the policy and process. But until now, at least, this much has never been thought enough to justify a claim of bad faith and launch an inquisition into a Cabinet secretary’s motives," Gorsuch wrote.

DOJ spokeswoman Kelly Laco said the court's decision was a "win" for protecting the rights of the executive branch.

"The intrusive and improper discovery in this case disrupts the orderly functioning of our government and is, as Justices Gorsuch and Thomas noted, 'highly unusual,'" Laco said. "The Department of Justice is committed to protecting the rule of law and looks forward to further proceedings before the Supreme Court."

Ross has said he added the citizenship question in order to provide the Justice Department with more data for enforcement of the Voting Rights Act. However, opponents of his decision say it will prompt many in immigrant communities to fail to return their Census forms, resulting in an undercount that reins in the political strength of urban areas with large immigrant populations and bolsters the representation of areas with largely white, older residents.

The citizenship-Census dispute has been closely watched as one of the first tests of how the high court's newest member, Justice Brett Kavanaugh, will rule on cases involving executive power. During his confirmation hearings, many Democrats portrayed him as inclined to be overly deferential to the Trump administration's assertions of authority.

What role he played in Monday night's decision was unclear. He was not recorded in partial dissent like Gorsuch and Thomas, but justices are not required to reveal whether they agreed with the court's ruling on a stay application. Further action by the court seems possible before the scheduled trial, so there may yet be a chance for Kavanaugh's views on the case to be clarified.