We recently covered how a Federal judge orders citizenship question removed from 2020 Census:

In the normal course, the case would go to the Second Circuit Court of Appeals. But the Commerce Department has filed for a Petition for a Writ of Certiorari Before Judgment (pdf.)(full embed at bottom of post).

This direct review, though rarely granted in the past, is becoming an increasingly common strategy by the Trump administration where District Courts drive national policy through nationwide injunctions. The Supreme Court recently stayed a lower court injunction against the new military transgender policy without waiting for the appeals court to rule.

The Census case has an even more compelling time element, as the government argued in the petition:

…Certiorari before judgment is appropriate when “the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.”

Sup. Ct. R. 11.

This case satisfies that standard. It involves an issue of imperative public importance: the decennial census. As the district court correctly recognized, the decennial census “is a matter of national importance” with “massive and lasting consequences,” and it “occurs only once a decade, with no possibility of a do-over.” Pet. App. 11a-12a. The district court also correctly recognized that “time is of the essence” because the government must finalize the decennial census questionnaire for printing by the end of June 2019. Id. at 12a. Both the government and respondents thus need a final resolution of the issues presented in this case by that date.

It is exceedingly unlikely that the parties could obtain full review in both the court of appeals and this Court by the end of June. Even highly expedited briefing and decision in the court of appeals likely would leave insufficient time for petition- and merits-stage briefing, argument, and decision in this Court this Term. Accordingly, as a practical matter, a writ of certiorari before judgment is likely the only way to protect this Court’s opportunity for plenary review.

Equally important, the government stressed that on the merits the District Court’s actions were unprecedented:

The issues presented in this case also merit this Court’s review. This Court already has granted review of the second question presented, involving the propriety of the district court’s orders expanding discovery beyond the administrative record and compelling the depositions of high-ranking Executive Branch officials, including Secretary Ross. See No. 18-557.

The first question presented also merits this Court’s review. The judgment below takes the unprecedented step of striking a demographic question from the decennial census and thereby preventing the Secretary of Commerce from exercising his delegated powers to “take a decennial census * * * in such form and content as he may determine.” 13 U.S.C. 141(a). In entering its order, the district court necessarily decided several subsidiary “important question[s] of federal law that ha[ve] not been, but should be, settled by this Court.” Sup. Ct. R. 10(c)…..

Indeed, to the government’s knowledge, this is the first time the judiciary has ever dictated the contents of the decennial census questionnaire. Cf. Pet. App. 416a (acknowledging that lower courts have, until now, “universally rejected” challenges to the census questionnaire “as meritless,” and citing cases).

Absent certiorari before judgment, the court of appeals likely would have the final say on these critical issues given the June 2019 deadline for finalizing the census form. In light of the immense nationwide importance of the decennial census, if the district court’s ruling is to stand, it should be this Court that reviews it. This Court previously has granted certiorari before judgment to promptly resolve important and timesensitive disputes.

In the transgender military case, the government followed up the petition for a writ of certiorari before judgment with a request for a stay. I noted the significance of the stay in that case:

The Supreme Court’s orders seem to be a reflection that the conservative Justice recognize a dilemma unique to the Trump era — District Courts effectively running policy decisions reserved to the Executive Branch based on aggressive constitutional and statutory interpretations bathed in politics.

Given the time constraints and need for finality by June argued by the government, it’s hard to see how a stay of the lower court ruling would suffice. It would leave the ultimate merits uncertain.

So expect the Supreme Court to either take the case or reject it, but not to issue a stay.


U.S. Dept Commerce v. NY St… by on Scribd


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