(Reuters) - The most pressing battle right now between the Trump administration and the federal judiciary is playing out in federal court in New York, where the Justice Department is defending the Commerce Department against allegations that it was motivated by racial animus to add a question about citizenship to the 2020 census form. This case will soon test whether the U.S. Supreme Court has the back of Attorney General Jeff Sessions as he fends off what he has recently called “judicial encroachment” on the Trump administration’s policy prerogatives.
Sessions and the DOJ appear to be confident the Supreme Court will agree that trial courts – and, in particularly, U.S. District Judge Jesse Furman of Manhattan, who is presiding over the census case – have been too quick to intrude on the administration’s policy-making deliberations. So far, only two justices have voiced broad support for DOJ’s position in the census case. But in new briefing at the 2nd U.S. Circuit Court of Appeals, the Justice Department said it sees portents that when the Supreme Court looks at the merits of its arguments for protecting executive branch deliberations from outside scrutiny, a majority of the justices will side with the government and rein in the trial judge’s order: “as Justice Gorsuch confirmed, this Court can only conclude that there is at least a fair prospect that the Supreme Court will quash the order authorizing the deposition of Secretary Ross.”
The new brief, filed Thursday, asks the 2nd Circuit to halt the scheduled Nov. 5 trial in which 18 states and several immigration advocacy groups will challenge the Commerce Department’s decision to add the citizenship question to the 2020 census. The Justice Department, as my colleague Andrew Chung reported for Reuters, told the 2nd Circuit that it should order Judge Furman to stop the scheduled trial until the Supreme Court has determined whether the trial judge exceeded his authority when he told the government to produce discovery beyond the administrative record on the citizenship question. DOJ said in the brief that it intends to file a petition asking the Supreme Court to take up that question on Oct. 29.
As you probably recall, Judge Furman, in a series of rulings in the past few months, held plaintiffs in the census case could probe the Trump administration’s deliberations because the states and advocacy groups adequately alleged that the government acted in bad faith when it decided to add the citizenship question to the standard census form.
At the time the Commerce Department announced the decision, Secretary Wilbur Ross said the question was being added at the request of the Justice Department, which, Ross said, needed citizenship data to prosecute Voting Rights Act cases. According to Judge Furman, that original rationale was a pretext: Commerce officials, he said, devised the Voting Rights Act justification and prodded the Justice Department to cooperate with its plan. The plaintiffs challenging the citizenship question contend Secretary Ross’ true motivation wasn’t to assist the Justice Department’s voting rights enforcement but to dissuade immigrants from responding to the census, thereby depriving immigrant communities of population-based funding and political representation.
The 2nd Circuit has already rejected two previous entreaties from the Justice Department about Judge Furman’s discovery rulings. In September, the appeals court held that Furman did not abuse his discretion when he ordered discovery beyond the administrative record, including a deposition of Acting Assistant Attorney General John Gore, who wrote a letter in which the Justice Department officially asked Commerce to add the citizenship question to the census. Judge Furman, according to the 2nd Circuit’s order in September, “applied controlling case law and made careful factual findings” to justify the additional discovery.
The appeals court reached the same conclusion earlier this month. A different three-judge panel at the 2nd Circuit denied DOJ’s petition to block Ross’ deposition, holding that Judge Furman “applied controlling case law and made detailed factual findings supporting (his) conclusion that Secretary Ross likely possesses unique firsthand knowledge central to the plaintiffs’ claims.”
But DOJ is banking on a big difference between those failed mandamus petitions and its new request. This time, DOJ said in Thursday’s filing, it has the Supreme Court on its side.
That’s unquestionably accurate, to an extent. On Monday night, the Supreme Court granted DOJ’s request to stay the deposition of Secretary Ross. That means at least five justices agreed with the Justice Department’s arguments that it deserves an opportunity before the deposition takes place to show the Supreme Court why the Commerce secretary’s deliberations should be shielded from exposure.
Even as the court blocked the Ross deposition, however, the justices declined to stay the other extra-record discovery ordered by Judge Furman. The court’s order did say that the stay denial “does not preclude the (Justice Department) from making arguments with respect to those orders” in a subsequent petition for Supreme Court review. But the denial means that at least five justices are not convinced irreparable harm will be done by the government’s production of most of the decision-making evidence Judge Furman has ordered it to provide.
Justice Neil Gorsuch, joined by Justice Clarence Thomas, wrote a dissenting opinion that provides the only public window into the justices’ thinking. Justice Gorsuch said the courts should have stayed all of the extra discovery Judge Furman ordered, not just Secretary Ross’ deposition, because the trial judge tagged unextraordinary policy-making as a showing of extraordinary bad faith. There’s no justification, according to Justices Gorsuch and Thomas, for any discovery beyond the administrative record on the Commerce Department’s decision to add the citizenship question.
The dissenting justices said the rest of the court had signaled in its stay of the Ross deposition that it would likely agree to hear a petition from the government on the merits of DOJ’s argument against all of the extra-record discovery. (As you know, it takes five justices to grant a stay but only four to grant a petition for review.) The court’s stay order, Gorsuch wrote, “expressly invites the government to seek review of all of the district court’s orders allowing extra-record discovery, including those authorizing the depositions of other senior officials.”
The justice was presumably referring to the sentence in the Supreme Court’s order noting that the stay denial “does not preclude” subsequent DOJ arguments to overturn all Judge Furman’s extra-record discovery orders. It’s hard to see how that sentence would qualify in any other context as an express invitation, but obviously, Justice Gorsuch knows a lot more than anyone outside the court about the undoubtedly sensitive negotiations among the justices to produce the compromise order on census case discovery.
The Justice Department’s new 2nd Circuit brief is based on the premise that Justice Gorsuch’s dissenting opinion reflects the view of a silent majority of justices who will ultimately hold the Commerce Department’s census deliberations are protected from discovery. DOJ picked up Justice Gorsuch’s cue and highlighted the sentence in the Supreme Court order that says the government is not precluded from challenging the merits of all of Judge Furman’s discovery orders, notwithstanding the Supreme Court’s decision not to stay any discovery beyond Secretary Ross’ deposition.
The court’s stay order, DOJ told the 2nd Circuit, implies that the government is likely to persuade the Supreme Court to grant full review of Judge Furman’s discovery orders when Justice files its petition for certiorari next week. That likelihood, DOJ’s brief said, warrants a stay of all further pre-trial proceedings and of the trial itself.
DOJ made a similar argument about the Supreme Court order to Judge Furman himself, to no avail. On Friday afternoon, the judge denied the Justice Department’s motion to postpone the Nov. 5 trial. Among other reasons, the judge said DOJ would suffer no irreparable harm if the Supreme Court ultimately holds his review is limited to the administrative record because he has directed both sides to differentiate in their briefing between evidence in that record and evidence obtained through his additional discovery orders. “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,” Judge Furman wrote. “Put simply, a stay is not necessary ‘to protect’ Supreme Court review. The Supreme Court can conduct that review, as in the usual case, after final judgment.”
Judge Furman pointed out that the Justice Department is pinning a lot of confidence on a dissent backed by only two of nine justices. That confidence, he said, may not be warranted. “There is nothing in the Supreme Court’s order itself that supports Defendants’ confident prediction,” he wrote. “Even if the Supreme Court’s language could reasonably be read as an invitation, it is rank speculation to infer from that invitation that the Supreme Court is likely to hold, in the present interlocutory posture no less, that this court erred in authorizing extra-record discovery.”
This may all seem like a lot of furor over a discovery dispute that, by Judge Furman’s own admission, could end up being completely tangential to his holding on the legality of the decision to add the citizenship question. But you have to remember the context of the fight. The attorney general said last week that the Trump administration believes federal judges have shown a pattern of exceeding their authority in rulings against Trump policies. The AG said the administration is counting on the Supreme Court to squelch this judicial resistance – even if that means going all the way to the high court in discovery disputes.
DOJ’s latest briefing in the census case shows the attorney general believes his strategy is going to succeed in blocking judicial scrutiny of Trump administration policy-making. Now we’ll have to see if the Supreme Court vindicates Sessions’ confidence.