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1/ Tonight the ACLU asked #SCOTUS to grant a limited remand in the census case so SDNY can consider the Hofeller files. supremecourt.gov/DocketPDF/18/1… 
2/ The case was placed on an expedited briefing schedule so the government could prepare the census forms in time. But the forms do not need to be printed until Oct. 31. In theory at least, #SCOTUS could hold a special Aug or Sept sitting to decide case in time.
3/ What is the leading precedent to support a limited remand? United States v. Shotwell Mfg. Co., 355 U.S. 233, 239–41 (1957) (Harlan, J.)
4/ Shotwell, which took two trips to SCOTUS, had a tortured posture.
5/ The case concerned a prosecution for income tax evasion. The defendants were convicted, but the court of appeals reversed. The SG petitioned for cert, which was granted.
6/ At that point, the SG filed a motion to remand the case back to the District Court. He argued that "At that point, the SG filed a motion to remand the case back to the District Court."
7/ FN. 9 states that the Respondents did not make a "showing in opposition to the Government's motion as would justify our questioning the accuracy of the Solicitor General's representation that the Government's proffered evidence is 'newly discovered.'" (Expect a CF here)
8/ Harlan found "the Government's new evidence casts the darkest shadow upon the truthfulness of the disclosure testimony." Therefore, "it is imperative that the case be remanded ... for a full exploration of where the truth lies before the case is allowed to proceed further"
9/ Here, a "convincing showing" was made that "either the testimony in the District Court was untrue or these affidavits themselves are the product of fraud." (The SG will vigorously dispute this point)
10/ J. Black dissented, joined by CJ Warren, and J. Douglas. He would have simply denied certiorari, and allowed the District Court to hold a new trial. At that point, the government could introduce new charges for perjury and fraud.
11/ The case was remanded in 1957. It came back to #SCOTUS six years later in 1963. The Court affirmed the convictions. I suspect the limited remand in this case would be much quicker.
12/ #SCOTUS has only cited Shotwell 13 times, and not since 1975. The ACLU had to reach very far back for a precedent to support a limited remand.
13/ The ACLU's conclusion is targeted directly at (who else) Chief Justice Roberts.
14/ This plea evokes a recent @WSJopinion editorial: "Whenever you read 'legitimacy' in a sentence about the Court, you know it’s a political missile aimed directly at Chief Justice John Roberts." wsj.com/articles/censu…
15/ At some point, the "legitimacy" missiles will begin to bear diminishing returns. Abortion: legitimacy. Census: legitimacy. Gerrymandering: legitimacy. Obamacare: legitimacy. Death penalty: legitimacy. Nevada v. Hall: legitimacy. Etc.
16/ Even if CJ Roberts runs the table, and votes the "legitimate" way in every single case, critics will still pursue "court reform" as payback for Garland. Nothing Roberts, or the other conservatives can do, will change that fact.
17/ Leveling up the legitimacy trap: if Roberts ruled for the government in the census case, he will not be viewed as a neutral umpire in President Trump's impeachment trial. takecareblog.com/blog/why-the-s… At some point, this resistance fan fiction will no longer have its desired effect
18/ Coming soon: the Judicial Reform Act of 2021. A new seat will be added to the Supreme Court whenever there is a 5-4 split, with Roberts, Thomas, Alito, Gorsuch, and Kavanaugh in the majority.
19/ More from @KimStrassel - House contempt vote on census documents another attempt to cast #scotus "legitimacy" in doubt. wsj.com/articles/conte…
Will ACLU file 28(j) about contempt vote?
Will ACLU file 28(j) about contempt vote?
20/ @scotusreporter picks up my "legitimacy" tweet in @washingtonpost washingtonpost.com/politics/court…
21/ Update: Plaintiffs in Census case filed motion for limited remand on June 12. Five days later, #SCOTUS hasn't even asked SG to file a reply. (I expected something on today's order link) Methinks this motion not be touched before case is decided. supremecourt.gov/search.aspx?fi…
