Thread by @rickhasen

My new one @slate: New Memo Reveals the Census Question Was Added to Boost White Voting Power; Why it won’t matter to the Supreme Court’s conservatives. slate.com/news-and-polit…

I think many of my liberal friends are going to be unhappy with my pessimism about what the Supreme Court will do in this case.

I hope I am pleasantly surprised.

Let's game out for a bit how the evidence of DOJ lying and the real reason for Secretary Ross's decision to include the citizenship question will get before the Supreme Court and what the Court will do with the information, if anything. /1

Right now, clerks on Court are surely reading news reports and commentary about the bombshell revelations that DOJ officials lied about the reasons for the citizenship question and the origins of the analysis. You can call it "virtual briefing," but the Justices will know it. /2

And there is a filing in the district court by the @ACLU seeking sanctions (aclu.org/legal-document…) for DOJ lying about the origins of the request for the citizenship question. /3

But that is a filing in the DISTRICT court. It is not before the Court. Briefing in the case is done. Oral argument was at the end of April. We expect a decision from the Court in late June and the millions of census forms need to be printed in July. /4

The Court ordinarily does not consider evidence not in district court record. It doesn't usually take evidence. But this case is already unusual given the press of time. There was no opinion (as there usually would be) between the district court opinion and SCOTUS from 2d Cir. /5

If there WERE time, the Court could dismiss the case and send it back for more factfinding in the district court, upon a motion from the plaintiffs. It would then consider whether to take the case again. But there's no time for this. /6

So plaintiffs can file a motion for Court to take judicial notice, or to accept late evidence, or to remand. (SCOTUS rules point to the Federal Rules of Evidence as a guide in cases raising issues where the Court has original jurisdiction, but those don't apply here) /7

I am hard-pressed to think of another example like this of newly discovered evidence that bears directly on an issue before the Court where there is no time to remand. Even in Bush v. Gore, the Court reviewed the Fla. Supreme Court decision just a few days after it made record /8

So the Court MIGHT accept a motion to take new evidence in this extreme case. And even if no motion is granted, nothing stops the Justices from reading news and commentary, and even citing to them, even if the Justices on the other side will complain that this is improper. /9

The conservative majority might not take new evidence. After all, they blocked Sec. Ross's deposition which could have cleared up this matter in the first place. This is a mess of SCOTUS's own making. /10

But if the conservative majority allows the citizenship question to go on the census without allowing in this new evidence, the liberal dissenters will surely cite it, and there will be a fight within a fight as to the propriety of doing so. It will be loud and ugly /11

Now maybe someone on #appellatetwitter has a good precedent for the consideration of new dispositive evidence by the Supreme Court where there is no time for grant, vacate, remand. But I can't think of one and this is a mess. 12/12

So plaintiffs have started the evidentiary battle with a letter to SCOTUS calling the district court filing to the Court's attention. This alone won't get the evidence properly before the Court.

https://twitter.com/hansilowang/status/1134170819985321985

13/12

.@dale_e_ho has some very interesting things to say about whether this evidence in the census case gets before the Supreme Court on today's @KQEDForum. I'll link again when audio is available (show also featured @hansilowang and me) kqed.org/forum/20101018…

Audio: kqed.org/forum/20101018…