, 26 tweets, 9 min read Read on Twitter
1/ I can see 5 paths forward for #SCOTUS on the census case. First, if the Court rules against the government, then the issue can be neatly resolved in advance of the June 30 deadline. I see this path as unlikely--based on assignments, it looks like J. Alito has the majority.
2/ Second, the Court could request supplemental letter briefs about whether, in fact, the June 30 deadline is the real deadline. The Plaintiffs have suggested that the real deadline is October 31.
3/ However, there is a problem with requesting this information: such a request underscores the fact that the Court is deciding the case on an expedited deadline. In other words, speed, rather than accuracy, may be the deciding factor. That move would convey the wrong message.
4/ Third, the Court could simply DIG the CA2 petition, knowing that the District Court in Maryland will likely make a finding of a 5th Am violation in the next two months. At that point, the SG will petition for cert before judgment, and #SCOTUS can hear the case in September
5/ This option would turn on the assumption that October 30 is in fact the real deadline. It would also make sure the Court does not prematurely resolve the constitutional question, which has not yet been briefed or argued.
6/ Fourth, #SCOTUS can follow the SG's lead - decide the 5th Amendment issue now, even though it neither briefed nor argued. But this option has huge problems, and is totally out of character of how Justices usually decide cases
7/ Fifth, #SCOTUS can issue a full decision now that resolves the APA issues now, and expressly decline to resolve the 5th Amendment issues bc it wasn't briefed.
8/ At that point, the District Court will likely issue another injunction (TRO or PI) to block the census question on the basis of the 5th Amendment. And, SG would seek emergency relief before June 30.
9/ #SCOTUS could then treat the stay application as a petition for cert before judgment, but not issue a stay, and calendar the case for a hearing in September--knowing full well that the District Court will conduct the discovery during the summer.
10/ By the time Sept rolls around, the issue is fully briefed, discovery is completed, and #SCOTUS can decide on a full record whether the 5th Am was violated. In other words, while the Justices vacation abroad, the lower court toils away. Then Justices clean up the mess.
11/ Assuming option #1 is out (and I think it is), the most likely option is #3 or #5. Resolve the NY case (either through a DIG or APA decision), and schedule special sitting for September. Allow everyone to have ample notice, and decide the case on a full record in the fall.
12/ Government deadlines always slip. Given the stakes of this case, the Commerce Department can turn the screws to get the forms printed in time.
13/ I see only downside for Option #2 and #4. I see lots of upside for Options #3 and #5. I am slightly more partial to #5, bc it cleans out all statutory issues, and focuses efforts on the 5th Am.
14/ Here is the thread, unrolled: threadreaderapp.com/thread/1143698…
15/ @rickhasen offers a similar prediction for the end game in the Census case electionlawblog.org/?p=105786
16/ @Courtartist could you make a #SCOTUS themed Avengers #Endgame banner? With Roberts as Thanos, snapping.
17/ Here is my amplified, uninformed prediction for Path #5:
1. Thursday, #SCOTUS decides APA issues, says nothing about the Equal Protection Issues.
2. Friday, SCOTUS denies motion for limited remand in orders list.
3. Saturday, District Court in MD issues injunction.
4. Saturday, SG petitions #SCOTUS for emergency stay before 6/30 deadline.
5. Sunday, Plaintiffs file reply.
6. Monday, SCOTUS denies emergency stay, treats application as petition for cert, and calendars case for September sitting.
19/ My schedule is looking about right. District court judge in MD asks DOJ to file brief tonight about whether new injunction should issue. He may wait till orders lists is released on Friday and enjoin the same or next day
20/ Of course, CJ Roberts chose door #6 in the census case. #SCOTUS As best as I can tell, the government can still win on remand if it provides additional justifications for the census question. Query if the Oct 31 deadline will come into play.
21/ During this remand, it is unclear if discovery continues into the Equal Protection Clause questions. (The Court did not discuss those issues at all).
22/ Moreover, I'm not sure how this decision affects the DACA case. I had expected a GVR, based on the census case, in light of the fact that the court probed the Director's intent. Now, such a GVR would not work.
23/ The census case is giving me flashbacks to NFIB v. Sebelius: Roberts crafts a compromise that advances a conservative goal (scrutinize agency action) but gives liberals a short term victory (no citizenship question), and confuses everyone about what happens next.
25/ One other wrinkle in the DACA matter. Judge Hanen was scheduled to hear oral argument in July. That hearing was pushed forward till October. #SCOTUS may go the entirety of Trump's first term in office w/out hearing DACA challenge.
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