[Updated] The Strange Supreme Courtroom Grant Inwards The Census Citizenship Enquiry Case

Currently pending inwards the Southern District of New York is a representative inwards which many States, counties, cities as well as somebody organizations bring sued the Department of Commerce, seeking to enjoin the Department's innovation to add together a enquiry nearly residents' citizenship to the 2020 census questionnaire.  Plaintiffs' primary arguments are that the inclusion of such a enquiry is arbitrary or capricious as well as that it is the resultant of race discrimination inwards violation of the equal protection "component" of the Fifth Amendment.

Two of import things happened inwards that representative on Friday.

First, District Judge Furman completed the trial inwards the case, as well as scheduled post-trial oral declaration for adjacent Tuesday, Nov 27.

Later that same day, however, the Supreme Court treated the government's pending petition for mandamus equally a petition for certiorari, granted the petition, as well as laid an expedited briefing schedule amongst oral declaration scheduled for Feb 19, 2019.  It's of import to sympathize that the Supreme Court petition is non nearly the merits of the case.  It was filed before the trial started, as well as the solely enquiry it presents is amongst abide by to the proper reach of discovery.  This is the Question Presented:

Whether, inwards an activeness seeking to laid aside way activeness nether the Administrative Procedure Act, five U.S.C. 701 et seq., a district courtroom may social club discovery exterior the administrative tape to probe the mental processes of the way decisionmaker—including past times compelling the testimony of high-ranking Executive Branch officials —when in that place is no prove that the decisionmaker disbelieved the objective reasons inwards the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis.  

The Court has ordered the authorities to submit its opening brief past times Dec 17.

This is, I believe, a very strange, almost inexplicable, grant, inwards low-cal of 2 things:

First, on Oct 22, the Supreme Court denied a authorities motility to remain regain of matters exterior the administrative tape (with the exception of the deposition of the Secretary of Commerce, which thus did non occur).  The Solicitor General as well as so made some other motility to remain the district courtroom proceedings, as well as i time again, on Nov 2, the Supreme Court denied that motion, too.  Accordingly, the regain at the optic of the petition then occurred and, equally noted above, the trial is immediately finished, amongst oral declaration to travel held adjacent week.

Second, the district courtroom approximate has already announced his expectation that inwards whatever findings of fact as well as conclusions of police that he makes inwards his post-trial judgment, he'll "differentiat[e]" betwixt prove that's within the administrative tape as well as prove adduced at trial that's exterior the administrative record.  [UPDATE:  Here's a handy chart the plaintiffs submitted on Sabbatum identifying the submitted prove from within as well as exterior the administrative record.]  That is to say, the approximate volition explicate whether the plaintiffs should prevail on the administrative tape lone and, if not, how whatever prove exterior that tape mightiness or mightiness non impact the judgment.  The courtroom added that "Defendants remain gratuitous to struggle . . . that the Court should disregard all prove exterior the administrative tape and, if unsuccessful, tin shipping away struggle on appeal that the Court erred inwards considering extra-record evidence."  Accordingly, equally Judge Furman explained, "if the Court rules against Defendants on the soil of extra-record materials as well as a higher courtroom holds that the Court should non bring considered those materials, Defendants would travel able to instruct consummate relief" from the appellate courts, including the Supreme Court, after terminal judgment--no retrial would travel necessary.

So what's the hollo for of the Supreme Court's cert. grant, to review the propriety of regain that has already been completed and to practice so before the trial courtroom enters judgment?  Why didn't the Court at to the lowest degree hold back until Judge Furman issued his judgment?  If the district courtroom has issued its judgment before Dec 17, when the government's opening brief inwards the Supreme Court is due, does the Court await the parties simply to care for the proceedings inwards the Court equally a form of straight appeal from the district courtroom on the merits--transforming the representative into i involving a de facto certiorari before judgment of sorts--thereby circumventing the courtroom of appeals?  That seems unlikely.  (And that's assuming the district courtroom rules against the government.  If Judge Furman rules inwards favor of the government, what happens to the Supreme Court case?  Presumably the plaintiffs--unlike the government(?)--would travel required to initially appeal to the courtroom of appeals.  But if so, why is the government's evidence-based petition ripe for SCOTUS review now?)

And if Judge Furman's judgment comes after December 17, what are the parties supposed to practice nearly it during their remaining briefing schedule inwards the Supreme Court?  Begin treating the SCOTUS representative equally if it were an appeal on the merits?  Simultaneously become upward to the Second Circuit on the merits piece the ancillary evidentiary enquiry nearly what prove the district courtroom should bring considered is pending inwards the Supreme Court?

I feel that I must travel missing something here, but I've asked these questions of a bunch of people next the case, as well as no one's had a clue nearly what the Court has inwards mind.  [One wild speculation:  Perhaps the Court fully expects to dismiss the petition equally moot i time Judge Furman issues his judgment, but is only trying to spur him to dominion expeditiously--something the Court presumably cannot simply social club a trial approximate to do--to arrive to a greater extent than probable the appellate courts tin shipping away opine on the merits before the goal of June.  If that's the reason, however, it seems unnecessary--as far equally I know Judge Furman has been moving things along rattling briskly, amongst the summertime deadline inwards mind.]

Meanwhile, exactly a few hours agone (yes, on a Sunday), the authorities defendants asked Judge Furman to revisit his prior decision to buy the farm on toward terminal judgment, as well as moved him to remain all proceedings until the Supreme Court issues its determination on the evidentiary questions sometime betwixt adjacent March as well as June.  I must confess that I don't run into the hollo for inwards such a delay, specially inwards low-cal of the court's determination to specify, inwards his forthcoming judgment, whether as well as how the plaintiffs' claims are affected past times whatever materials exterior the administrative record.  Influenza A virus subtype H5N1 four- to seven-month delay before the courtroom enters its terminal judgment would effectively prevent the courts from beingness able to carefully consider the merits of the representative before the novel census forms are to travel printed upward inwards June.  Why would that travel (in the government's words) "the most prudent course"?

[UPDATE:  Judge Furman has instructed the plaintiffs to file their reply to the government's novel motility past times 4:00 p.m. on Tuesday, Nov 20.  Here is that opposition.  Not satisfied amongst such a rapid schedule, DOJ has immediately gone to the U.S. Court of Appeals amongst a motion to remain the district courtroom proceedings.  Others may disagree, but I don't run into inwards that motility whatever persuasive basis for a stay.]

[UPDATE, Nov. 20:  Here's the plaintiffs' opposition to the remain motion.  Meanwhile the U.S. Court of Appeals for the Second Circuit has instructed the authorities to travel patient:

The Government moved yesterday for a remain of proceedings inwards 2 consolidated district courtroom cases pending the Supreme Court’s resolution of In re Department of Commerce, No. 18-557. Influenza A virus subtype H5N1 similar motility for a remain of proceedings, filed solely 2 days ago, remains pending before the District Court, which laid a deadline for filing whatever opposition to the motility past times today at 4 p.m.  Upon due consideration, it is hereby ORDERED that the motions for a remain are DENIED equally premature, without prejudice to renewing the motions for the Court’s consideration inwards the lawsuit the District Court denies the remain motility pending before it. In the lawsuit the District Court denies the motion, this appeal volition travel deemed automatically renewed for our consideration.

Late this afternoon, Judge Furman denied the motility for stay as well as didn't mince words nearly his views of the government's conduct:

"Unless burdening Plaintiffs as well as the federal courts amongst make-work is a characteristic of Defendants’ litigation strategy, equally opposed to a bug, it is difficult to run into the point." 

"To borrow from Camus, '[o]ne must imagine Sisyphus happy.'"  

"The words 'harm' as well as 'injury' practice non look anywhere inwards their motility . . . for skillful reason, equally the notion that they—or anyone else—would endure 'irreparable harm' without a remain is laughable." 

"Defendants’ motility makes so niggling sense, fifty-fifty on its ain terms, that it is difficult to sympathize equally anything but an endeavour to avoid a timely determination on the merits altogether."   

"If Defendants’ motility inwards this Court comes roughly the sanctionable line, [their CTA2] filing would certain seem to cross it."   

"Defendants’ motility is most galling insofar equally it is premised on the proffer that granting a remain would assistance conserve judicial resources.  It is evidently to a greater extent than efficient for this Court to dominion expeditiously." 

"If Defendants were genuinely interested inwards conserving judicial resources, they could bring avoided burdening this Court, the Second Circuit, as well as the Supreme Court amongst twelve remain applications over the finally xi weeks that, amongst i narrow exception, bring been repeatedly rejected equally meritless. Instead, Defendants would bring focused their attending on the ultimate issues inwards this case, where the attending of the parties as well as the Court immediately belongs." 

"Enough is enough."

And soundless afterward this afternoon, the government, undeterred, went dorsum to the Second Circuit as well as asked that court to immediately care for its before motility for remain equally "automatically renewed."]

[UPDATE 11/21:  Here's the opposition to stay inwards the courtroom of appeals from the city, county as well as solid soil plaintiffs.

This afternoon the Court of Appeals for the Second Circuit speedily as well as unceremoniously rejected the DOJ/DOC motility to remain Judge Furman's proceedings "substantially for the reasons laid forth inwards the District Court’s brief opinion."]

[FURTHER UPDATE:  Just before midnight, the parties filed their post-trial memoranda--with oral declaration to travel held adjacent Tuesday, Nov. 26:

Plaintiffs' Proposed Findings of Facts

Plaintiffs' Proposed Findings of Law

Defendants' Proposed Findings of Facts as well as Law]