DOJ plans to ask Supreme Court to hear census case this term

The Department of Justice, reeling from a district court opinion that blocked the Trump administration from adding a citizenship question to the 2020 census, signaled on Tuesday that it plans to ask the Supreme Court to take up the case on an expedited basis and decide the issue definitively by the end of June.

“The government intends to file forthwith a petition for a writ of certiorari before judgment, with a proposal for expedited briefing to allow for oral argument and decision this term,” Solicitor General Noel Francisco told the justices in a related filing at the court on Tuesday.

He noted that the court should agree to hear the case before a federal appeals court has weighed in because the government must finalize the questionnaire by the end of June to “enable it to be printed on time.” He said the issue was one of “imperative public importance” and that the justices should agree to deviate from “normal appellate practice.”

“As the district court recognized, the decennial census is a matter of national importance with massive and lasting consequences, in part because it occurs only once a decade, with no possibility of a do over,” he wrote.

Francisco suggests the court could hear the case during its April sitting or at a special sitting in May. Under normal circumstances, the court does not sit in May as it prepares to release opinions by the end of June.

Also under normal circumstances, the justices do not like to take up a case before it is heard by federal appeals courts. But the fact that the census needs to be printed in a timely fashion might push the high court to agree to hear the case sometime this term.

On Jan. 15, Judge Jesse Furman of the US District Court for the Southern District of New York said Commerce Secretary Wilbur Ross’ decision to add a citizenship question was unlawful for a “multitude of independent reasons and must be set aside.”

The ruling was a victory for the American Civil Liberties Union and a coalition of states that had charged that the Trump administration’s real reason for adding the question was to reduce the representation of immigrant populations. They said the question would harm the response rate in households composed of noncitizens because some family members might be too afraid to come forward.

Last March, Ross, who has jurisdiction over the census, said the Justice Department had requested the change in part because the information would be useful for its enforcement of the Voting Rights Act.

The question hasn’t been asked of all recipients of the census since 1950.