Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
[UPDATED] The Odd Supreme Court Grant in the Census Citizenship Question Case
Currently pending in the Southern District of New York is a case in which many States, counties, cities and private organizations have sued the Department of Commerce, seeking to enjoin the Department's plan to add a question about residents' citizenship to the 2020 census questionnaire. Plaintiffs' primary arguments are that the inclusion of such a question is arbitrary or capricious and that it is the result of race discrimination in violation of the equal protection "component" of the Fifth Amendment.
Two important things happened in that case on Friday.
First, District Judge Furman completed the trial in the case, and scheduled post-trial oral argument for next Tuesday, November 27.
Later that same day, however, the Supreme Court treated the government's pending petition for mandamus as a petition for certiorari, granted the petition, and set an expedited briefing schedule with oral argument scheduled for February 19, 2019. It's important to understand that the Supreme Court petition is not about the merits of the case. It was filed before the trial started, and the only question it presents is with respect to the proper scope of discovery. This is the Question Presented:
Whether, in an action seeking to set aside agency action under the Administrative Procedure Act, 5 U.S.C. 701 et seq., a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker—including by compelling the testimony of high-ranking Executive Branch officials —when there is no evidence that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis.
The Court has ordered the government to submit its opening brief by December 17.
This is, I believe, a very strange, almost inexplicable, grant, in light of two things:
First, on October 22, the Supreme Court denied a government motion to stay discovery of matters outside the administrative record (with the exception of the deposition of the Secretary of Commerce, which therefore did not occur). The Solicitor General then made another motion to stay the district court proceedings, and once again, on November 2, the Supreme Court denied that motion, too. Accordingly, the discovery at the heart of the petition then occurred and, as noted above, the trial is now finished, with oral argument to be held next week.
Second, the district court judge has already announced his expectation that in any findings of fact and conclusions of law that he makes in his post-trial judgment, he'll "differentiat[e]" between evidence that's within the administrative record and evidence adduced at trial that's outside the administrative record. [UPDATE: Here's a handy chart the plaintiffs submitted on Saturday identifying the submitted evidence from inside and outside the administrative record.] That is to say, the judge will explain whether the plaintiffs should prevail on the administrative record alone and, if not, how any evidence outside that record might or might not affect the judgment. The court added that "Defendants remain free to argue . . . that the Court should disregard all evidence outside the administrative record and, if unsuccessful, can argue on appeal that the Court erred in considering extra-record evidence." Accordingly, as Judge Furman explained, "if the Court rules against Defendants on the basis of extra-record materials and a higher court holds that the Court should not have considered those materials, Defendants would be able to get complete relief" from the appellate courts, including the Supreme Court, after final judgment--no retrial would be necessary.
So what's the point of the Supreme Court's cert. grant, to review the propriety of discovery that has already been completed and to do so before the trial court enters judgment? Why didn't the Court at least wait until Judge Furman issued his judgment? If the district court has issued its judgment before December 17, when the government's opening brief in the Supreme Court is due, does the Court expect the parties simply to treat the proceedings in the Court as a sort of direct appeal from the district court on the merits--transforming the case into one involving a de facto certiorari before judgment of sorts--thereby circumventing the court of appeals? That seems unlikely. (And that's assuming the district court rules against the government. If Judge Furman rules in favor of the government, what happens to the Supreme Court case? Presumably the plaintiffs--unlike the government(?)--would be required to initially appeal to the court of appeals. But if so, why is the government's evidence-based petition ripe for SCOTUS review now?)
And if Judge Furman's judgment comes after December 17, what are the parties supposed to do about it during their remaining briefing schedule in the Supreme Court? Begin treating the SCOTUS case as if it were an appeal on the merits? Simultaneously go up to the Second Circuit on the merits while the ancillary evidentiary question about what evidence the district court should have considered is pending in the Supreme Court?
I sense that I must be missing something here, but I've asked these questions of a bunch of people following the case, and no one's had a clue about what the Court has in mind. [One wild speculation: Perhaps the Court fully expects to dismiss the petition as moot once Judge Furman issues his judgment, but is merely trying to spur him to rule expeditiously--something the Court presumably cannot simply order a trial judge to do--to make it more likely the appellate courts can opine on the merits before the end of June. If that's the reason, however, it seems unnecessary--as far as I know Judge Furman has been moving things along very briskly, with the summer deadline in mind.]
Meanwhile, just a few hours ago (yes, on a Sunday), the government defendants asked Judge Furman to revisit his prior decision to proceed toward final judgment, and moved him to stay all proceedings until the Supreme Court issues its decision on the evidentiary questions sometime between next March and June. I must confess that I don't see the point in such a delay, especially in light of the court's determination to specify, in his forthcoming judgment, whether and how the plaintiffs' claims are affected by any materials outside the administrative record. A four- to seven-month delay before the court enters its final judgment would effectively preclude the courts from being able to carefully consider the merits of the case before the new census forms are to be printed up in June. Why would that be (in the government's words) "the most prudent course"?
[UPDATE: Judge Furman has instructed the plaintiffs to file their response to the government's new motion by 4:00 p.m. on Tuesday, November 20. Here is that opposition. Not satisfied with such a rapid schedule, DOJ has now gone to the U.S. Court of Appeals with a motion to stay the district court proceedings. Others may disagree, but I don't see in that motion any persuasive basis for a stay.]
[UPDATE, Nov. 20: Here's the plaintiffs' opposition to the stay motion. Meanwhile the U.S. Court of Appeals for the Second Circuit has instructed the government to be patient:
The Government moved yesterday for a stay of proceedings in two consolidated district court cases pending the Supreme Court’s resolution of In re Department of Commerce, No. 18-557. A similar motion for a stay of proceedings, filed only two days ago, remains pending before the District Court, which set a deadline for filing any opposition to the motion by today at 4 p.m. Upon due consideration, it is hereby ORDERED that the motions for a stay are DENIED as premature, without prejudice to renewing the motions for the Court’s consideration in the event the District Court denies the stay motion pending before it. In the event the District Court denies the motion, this appeal will be deemed automatically renewed for our consideration.
"Unless burdening Plaintiffs and the federal courts with make-work is a feature of Defendants’ litigation strategy, as opposed to a bug, it is hard to see the point."
"To borrow from Camus, '[o]ne must imagine Sisyphus happy.'"
"The words 'harm' and 'injury' do not appear anywhere in their motion . . . for good reason, as the notion that they—or anyone else—would suffer 'irreparable harm' without a stay is laughable."
"Defendants’ motion makes so little sense, even on its own terms, that it is hard to understand as anything but an attempt to avoid a timely decision on the merits altogether."
"If Defendants’ motion in this Court comes close to the sanctionable line, [their CTA2] filing would sure seem to cross it."
"Defendants’ motion is most galling insofar as it is premised on the suggestion that granting a stay would help conserve judicial resources. It is plainly more efficient for this Court to rule expeditiously."
"If Defendants were truly interested in conserving judicial resources, they could have avoided burdening this Court, the Second Circuit, and the Supreme Court with twelve stay applications over the last eleven weeks that, with one narrow exception, have been repeatedly rejected as meritless. Instead, Defendants would have focused their attention on the ultimate issues in this case, where the attention of the parties and the Court now belongs."
"Enough is enough."
And still later this afternoon, the government, undeterred, went back to the Second Circuit and asked that court to now treat its earlier motion for stay as "automatically renewed."]
[UPDATE 11/21: Here's the opposition to stay in the court of appeals from the city, county and state plaintiffs.
This afternoon the Court of Appeals for the Second Circuit quickly and unceremoniously rejected the DOJ/DOC motion to stay Judge Furman's proceedings "substantially for the reasons set forth in the District Court’s brief opinion."]
[FURTHER UPDATE: Just before midnight, the parties filed their post-trial memoranda--with oral argument to be held next Tuesday, Nov. 26: