ANOTHER HICCUP IN CENSUS DISPUTE | Could Census Case Be The Next Bush V. Gore?

June 26, 2019

A new poll from Fix the Court/PSB (not PBS!!!) came out yesterday and found that more than three in four likely voters want to end life tenure at the Supreme Court. The poll also found strong majorities across gender and age lines also favor term limits. Adam Rosenblatt, senior strategist at PSB noted, “These numbers suggest that the recent momentum behind ending life tenure at the Supreme Court has staying power. Voters recognize that our nation’s highest court is not immune to partisanship and dysfunction, and they want solutions.”

On the eve of hearing from the Supreme Court on the census issue, a federal appeals court ordered a judge to review allegations that the Trump administration hid its discriminatory intentions of using the citizenship question to give whites and Republicans greater political power. Michael Wines with The New York Times writes, “By allowing a district judge to reopen a case related to the origin of the question, a federal appeals court raised the prospect that the federal government might be unable to meet a deadline for completing census questionnaires that include it, regardless of the Supreme Court’s ruling. New hearings in the reopened case would stretch well beyond July 1, which is the deadline for printing the questionnaire and other forms. The Census Bureau has said that meeting that deadline is essential to conducting the national head count on time.”

Richard Wolf with USA Today reports that although the federal appeals court order is a setback for the Trump administration, it’s not necessarily going to have an effect on the Supreme Court’s ruling in the matter. He notes the conservative justices seemed supportive of adding the citizenship question during oral argument in April.

To bring us even more clarity on the news, Mark Joseph Stern with Slate explains that even if the Supreme Court’s five conservatives vote to allow the citizenship question, Tuesday’s federal appeals court ruling says “a judge may block the question again over new evidence that further proves the question’s illegality.” Stern points out, “This last-minute development centers around information found on the files of THOMAS HOFELLER, the GOP’s former gerrymandering guru. When he died last year, Hofeller left behind a trove of materials that his estranged daughter turned over to voting rights advocates. Among other things, these files suggested that Justice Department officials worked with Hofeller to devise a pretextual justification for the census citizenship question, asserting that it would aid enforcement of the Voting Rights Act. This pretext was meant to conceal the real reason for the question: It could, Hofeller explained, substantially reduce the voting power of Democrats and Hispanics while boosting that of ‘Republicans and non-Hispanic Whites.'”

Also in Slate, Richard L. Hasen argues the government’s conduct in the citizenship case “has gone from indefensible to outrageous.” He highlights that the Equal Protection claim is not included in the Supreme Court case it’s about to decide, but two last-minute filings from SOLICITOR GENERAL NOEL FRANCISCO asked SCOTUS to “address the equal-protection claim and the immateriality of the Hofeller files in its disposition of the above-captioned case so that the lawfulness of the Secretary Ross’s decision can be fully and finally resolved.” Hasen is having none of that. He urges, “This is outrageous. The issue has not been fully briefed. It was not the subject of oral argument. It involves evidence for which there has been no fact-finding. For the Supreme Court to decide the issue on this basis is the definition of lawlessness. It is not how the Supreme Court normally does business, and the solicitor general should know better.” The Fourth Circuit found that the printing of the questionnaire can wait until October, Hasen says. He thinks SCOTUS should wait until the trial court does its fact-finding about possible discriminatory intent from the Hofeller evidence so we don’t find ourselves reliving history with another Bush v. Gore situation.

The Supreme Court ruled 5-4 today that a federal law requiring sex offenders to return to prison based on a judge’s new findings is unconstitutional because it’s juries, not judges, who get to determine criminal conduct. Richard Wolf with USA Today reports on the judgement.

In a unanimous ruling today, the Supreme Court refused to strip federal agencies of the power to interpret ambiguous regulations. Together, the justices upheld agencies’ authority while narrowing the circumstances in which courts will defer to an agency’s interpretation of ambiguous language in its own regulations. For the specific SCOTUS case, this outcome allows a Marine Corps veteran who sought disability benefits for his service-related post-traumatic stress a second chance.

On this day in 2013, the Supreme Court gave the nation’s legally married gay couples equal federal footing with all other married Americans and also cleared the way for same-sex marriages to resume in California. Also a happy belated to JUSTICE SONIA SOTOMAYOR who turned 65 yesterday.