Opinion | Who Owns the Supreme Court?
The Trump administration’s treatment of the Supreme Court as a wholly owned subsidiary is one of the most compelling dramas now unfolding in Washington. Whether this drama plays out as comedy or tragedy is up to the court.
“Comedy” may be an odd word in this context, but I have to confess that I’ve been more than a little amused by the administration’s frantic and largely failed effort to enlist the justices in keeping the public from learning how the decision to add a citizenship question to the 2020 census actually came about.
The embarrassing outline of the story is known, summarized in eyebrow-raising detail by Michael Wines in The Times this week. Wilbur L. Ross, the secretary of commerce, testified to Congress under oath in March that he added the disputed question “solely” because the Justice Department asked for it. In fact, documents that came to light in a lawsuit brought by the State of New York and other governmental and private plaintiffs show that pressure didn’t come from the Justice Department. Rather, it was Secretary Ross who pressed the Justice Department to make the request, after consulting with Steve Bannon, the former White House strategist, and Kris Kobach, one of the country’s most stridently anti-immigrant political figures (who lost his race for the governorship of Kansas in Tuesday’s election).
Census experts have warned that a question about citizenship status will deter immigrants from responding altogether, leading to a potentially significant undercount in parts of the country with large immigrant populations, which could affect federal funding to states and representation in Congress.
Last month, with a trial date approaching for the New York lawsuit, the administration went to the Supreme Court with a request to block the plaintiffs from taking pretrial testimony from Secretary Ross and John Gore, the acting assistant attorney general in charge of the Justice Department’s Civil Rights Division. Federal District Judge Jesse Furman, presiding over the case, had refused to block the depositions on the ground that the plaintiffs had already made a sufficiently “strong showing of bad faith” on the part of the two officials to justify further investigation of the decision-making process. The United States Court of Appeals for the Second Circuit upheld Judge Furman’s order.
In the administration’s request to the Supreme Court, Solicitor General Noel J. Francisco argued that because “an agency decision maker’s mental processes are generally irrelevant to evaluating the legality of agency action,” there was no reason to “probe the secretary’s mental processes.” In an unsigned order, the justices agreed, apparently unanimously, to block the deposition of Secretary Ross, while voting 7 to 2 to allow the deposition of Mr. Gore to go forward. The dissenters were Justices Neil Gorsuch and Clarence Thomas, who said the court should have stopped the questioning of both men. Their separate opinion contained a strong hint to Judge Furman: “One would expect that the court’s order today would prompt the district court to postpone the scheduled trial and await further guidance.”
That was a hint that Judge Furman chose not to take a few days later, when the administration asked him to stay the entire trial. Rejecting that request, the judge elaborated on his earlier reference to “bad faith.” In a pointed 15-page opinion, he wrote that he had “found reason to believe that Secretary Ross had provided false explanations of his reasons for, and the genesis of, the citizenship question.” Three days later, the administration was back at the Supreme Court, quoting from the two justices’ earlier dissenting opinion and seeking an immediate stay of the trial. In an unsigned one-sentence order, issued last Friday, the justices refused. The vote this time was 6 to 3. Justice Samuel A. Alito Jr. joined Justices Gorsuch and Thomas. The trial began in Judge Furman’s courtroom in Manhattan on Monday.
It takes the votes of five justices to grant any kind of stay. Conspicuously missing from the votes on the administration’s side were Chief Justice John Roberts Jr. and his newest colleague, Justice Brett Kavanaugh. The majority’s silence gives no hint of their reasoning. Maybe the chief justice and Justice Kavanaugh simply found Solicitor General Francisco’s hyperbolic rhetoric unpersuasive. Or maybe it was something deeper, a sense that a 5-to-4 vote to shield the Trump administration from ordinary legal process would have been a needless step on the road to disaster for a court already seen as polarized by political allegiances. By just such incremental developments will the line between comedy and tragedy be etched by the newly constituted Roberts court.
But for those of us hanging on the court’s every move, there was hardly time to catch our breath before the Trump administration was back at it again, trying to bend the court to its will. On Monday night, it filed three highly unusual petitions at the court, this time seeking immediate review of decisions by three Federal District Courts that have prevented the administration from shutting down the Deferred Action for Childhood Arrivals program. All three decisions, from courts in New York, San Francisco and Washington, are already in federal appeals courts, with one appeal having been argued and another scheduled to be heard in January. So what’s the rush?
The administration’s filing of three petitions “for a writ of certiorari before judgment” is an aggressive move, and the language is aggressive as well, devoid of even a hint of empathy for the fate of the “Dreamers,” young people brought to this country as children who have been enabled by DACA to build stable adult lives in the United States. “These cases concern the executive branch’s authority to revoke a discretionary policy of nonenforcement that is sanctioning an ongoing violation of federal immigration law by nearly 700,000 aliens,” the petition in the New York case, Nielsen v. Vidal, asserts. The administration’s basic argument is that the decision to undo the program, established by the administration of President Barack Obama in 2012, is unreviewable by any federal court.
What makes the filing even more striking is that the administration tried the same move last January in one of the San Francisco cases, United States Department of Homeland Security v. Regents of the University of California. Solicitor General Francisco argued then that the “institutional injury suffered by the United States” from the district court’s injunction against shutting down DACA merited an immediate Supreme Court appeal. The justices denied the petition.
What’s different now? It can’t be that the White House was looking for an Election Day tough-on-immigrants headline; the petitions were filed late in the day on Monday without fanfare and made news only in the legal press. Did Attorney General Jeff Sessions want to show what a gung-ho team player he was on the eve of what turned out to be his forced resignation on Wednesday? Such speculation is above my pay grade. But one reason that comes to mind is that the court today is different from the court that existed last January. Unlike the five votes needed to issue a stay, four votes are sufficient to grant a petition and add a case to the calendar for decision. Maybe the administration’s lawyers assume that Justice Anthony Kennedy wasn’t with them back then but that Justice Kavanaugh, his successor, will be with them now.
Or maybe they make no such assumptions, but simply want to try and see — to test the line between comedy and tragedy.
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Linda Greenhouse, the winner of the 1998 Pulitzer Prize, writes on alternate Thursdays about the Supreme Court and the law. She reported on the Supreme Court for The Times from 1978 to 2008, and is the author of several books.
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