The Census Case Grant and Other Orders

On Friday November 16, 2018, the Court granted the petition for certiorari in In Re Department of Commerce, et al., a case in which they previously denied the request to delay a trial over a dispute about whether a question relating to citizenship status should be included on the 2020 census. As The Hill discusses, the dispute arises out of a lower court decision to allow Commerce Secretary Wilbur Ross to be questioned under oath about adding a citizenship question to the 2020 census. For more on what the Court will weigh in on in this case, read this NPR article; the New York Times also has more. The Court also agreed to hear Cochise Consultancy, Inc. v. United States ex rel. Hunt, a case about the statute of limitations in False Claims Act cases. More information about that case is available from Bloomberg BNA here.

The Court released the remaining orders from its November 16 Conference the following Monday. One notable order included an opinion dissenting from the denial of certiorari in Stuart v. Alabama, which arose out of a DUI conviction. This case involved an Alabama criminal court allowing the introduction of a State laboratory employee’s formal report regarding Petitioner-Stuart’s blood alcohol level into evidence as actual evidence of her blood alcohol level, without testimony from the person who performed the tests and signed the reports. Stuart alleged in her petition for certiorari that the Alabama court’s decision to admit the evidence violated her Sixth Amendment right to confront her accusers, in conflict with the Court’s 2011 precedent set in Bullcoming v. New Mexico. This 2013 Slate article discussed Bullcoming, and the ABA Journal has more background on the Court’s Confrontation Clause precedent.

While the Court declined to hear Stuart’s case, Justice Gorsuch, joined by Justice Sotomayor, wrote a dissent to the denial of certiorari to express his disagreement: “[T]he Constitution promises every person accused of a crime the right to confront his accusers. Amdt. 6. That promise was broken here. . . The engine of cross-examination was left unengaged, and the Sixth Amendment was violated.” Justice Gorsuch did not limit his criticism to the trial court, though, also writing: “To be fair, the problem appears to be largely of our creation. This Court’s most recent foray in this field, Williams v. Illinois(2012), yielded no majority and its various opinions have sown confusion in courts across the country. . . This case supplies another example of that confusion.”

While alluding to what his opinion in the case might have been had the Court granted certiorari, Justice Gorsuch’s main concern was focused on the consequences that not granting certiorari would have for continuing confusion in cases presenting similar Sixth Amendment questions. This reason article discusses Justice Gorsuch’s dissent, noting that the pairing of Justices Gorsuch and Sotomayor is not unheard of in criminal justice cases. The ABA Journal and Daily Report also covered the dissent, and this Slate article discusses offers a perspective on Justices Sotomayor and Gorsuch  “Teaming Up to Protect Criminal Defendants.”

Written by ISCOTUS Fellow Zoe Arthurson McColl, Chicago-Kent Class of 2020, edited by Matthew Webber, ISCOTUS Editorial Coordinator, Chicago-Kent Class of 2019, and overseen by Carolyn Shapiro, ISCOTUS Co-Director.

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