SCOTUS and the Ross Deposition

Secretary of Commerce Wilbur Ross will not have to sit for a deposition in a lawsuit that challenges his decision to include a citizenship question on the 2020 census, at least at for the moment, the Supreme Court ruled in an order it handed down Monday night.

John Gore, the acting head of the civil rights division of the Department of Justice, will likely have to submit to a deposition because the Court’s opinion denied the application for stay of a court order which required his deposition. The opinion also denied the request to block other discovery outside the administrative record.

The order also gave the Department of Commerce until Monday, October 29, to petition for certiorari regarding the order. If the Commerce Department does so, the upheld stay will remain in effect until the Supreme Court decides whether to grant certiorari on the issue. If the Court denies certiorari, the stay will terminate and Ross will be subject to deposition. If the Court grants certiorari, the stay ends when the Court issues an opinion on the issue.

There were no noted dissents from the decision to stay Ross’s deposition. Justice Gorsuch, however, wrote an opinion in which he, joined by Justice Thomas, concurred in part and dissented in part. Gorsuch wrote that he would have gone a step further and stayed all extra-record discovery until the Supreme Court could review the order. Gorsuch wrote that the majority opinion could allow the plaintiffs to lay the groundwork for preventing certiorari. The plaintiffs could, he wrote, withdraw their request to depose Ross, persuade the trial court to quickly try the case, and then oppose certiorari, arguing that their discovery dispute had become moot.

Although the district court held that a deposition of Ross as necessary because the plaintiffs had made a “strong showing” of “bad faith” by Ross, Gorsuch disagreed. “Levelling an extraordinary claim of bad faith against a coordinate branch of government requires an extraordinary justification,” he wrote. Gorsuch went on to write that the evidence of bad faith the district court cited was insufficient.

The lawsuit challenges Ross’s decision to add the citizenship question as violating the Administrative Procedure Act and the Due Process Clause of the Fifth Amendment. The plaintiffs also argue that the question will deter immigrants from responding to the census, resulting in inaccurate  numbers. Census results are hugely important. They are used to draw House districts, which also determine each state’s number of electoral votes. Census data are also used to distribute federal funds under a variety of programs.

Ross has said he added the question so that the Justice Department can use the citizenship information to better enforce Section 2 of the Voting Rights Act, but the plaintiffs claim that explanation is pretextual. And recently released documents raise questions about Ross’s candor about this issue when he testified before Congress.

Ross testified that the Justice Department “initiated” the request for the question in December 2017 by sending a letter to the Census Bureau. But documents released in discovery suggest that Ross or his staff spoke about the citizenship question to Attorney General Jeff Sessions in the Spring of 2017 and that that Ross or his staff discussed the census question with Gore, Sessions’s aide, Mary Blanche Hankey, Danielle Cutrona (a Justice Department lawyer) and two others. In addition, Kansas Secretary of State Kris Kobach, who is also running for governor of Kansas as a Republican, sent Ross an e-mail, dated July 14, 2017, asking about adding the citizenship question to the census. Kobach, who led a failed voter-fraud task force under Trump, said that he was following up on the telephone conversation that Ross and Kobach had “a few months ago.”

Other recently released documents raise other questions. During Ross’s congressional testimony, Democratic Representative Grace Meng, of New York, asked Ross, ”Has the president or anyone in the White House discussed with you or anyone on your team about adding this citizenship question?” Ross answered, “I am not aware of any such.” But newly released documents suggest that Ross spoke with Steve Bannon, then serving as President Donald Trump’s chief strategist, before including the citizenship question on the 2020 census.

Article 1 Section 2 of the U.S. Constitution mandates that the government conduct a census every decade. The section does not mention citizenship.

Written by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, edited by Matthew Webber, ISCOTUS Editorial Coordinator, Chicago-Kent Class of 2019, and overseen by ISCOTUS co-director Carolyn Shapiro.

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