In Re Department of Commerce , 202 L. Ed. 2d 306 ( 2018 )

Cite as: 586 U. S. ____ (2018) 1
Opinion of GORSUCH, J.
SUPREME COURT OF THE UNITED STATES
IN RE DEPARTMENT OF COMMERCE, ET AL.
ON APPLICATION FOR STAY
No. 18A375. Decided October 22, 2018
The application for stay presented to JUSTICE GINSBURG
and by her referred to the Court is granted in part and
denied in part. The application is granted as to the order
of the United States District Court for the Southern Dis-
trict of New York dated September 21, 2018, which is
stayed through October 29, 2018 at 4 p.m. The application
is denied as to the orders of the United States District
Court for the Southern District of New York dated July 3,
2018 and August 17, 2018.
If the applicants file a petition for a writ of certiorari or
a petition for a writ of mandamus with respect to the
stayed order by or before October 29, 2018 at 4 p.m., the
stay will remain in effect until disposition of such petition
by this Court. Should the petition be denied, this stay
shall terminate automatically. In the event the petition is
granted, the stay shall terminate upon the sending down
of the judgment of this Court. The denial of the stay with
respect to the remaining orders does not preclude the
applicants from making arguments with respect to those
orders.
JUSTICE GORSUCH, with whom JUSTICE THOMAS joins,
concurring in part and dissenting in part.
To implement the constitutional requirement for an
“actual Enumeration” of the people every 10 years, Art. I,
§2, cl. 3, Congress has instructed the Secretary of Com-
merce to “take a decennial census . . . in such form and
content as he may determine.” 13 U. S. C. §141(a). Most
censuses in our history have asked about citizenship, and
Commerce Secretary Wilbur Ross recently decided to
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Opinion of GORSUCH, J.
reinstate a citizenship question in the 2020 census, citing
a statement from the Department of Justice indicating
that citizenship data would help it enforce the Voting
Rights Act of 1965. Normally, judicial review of an agency
action like this is limited to the record the agency has
compiled to support its decision. But in the case before us
the district court held that the plaintiffs—assorted States
and interest groups—had made a “strong showing” that
Secretary Ross acted in “bad faith” and were thus entitled
to explore his subjective motivations through “extra-record
discovery,” including depositions of the Secretary, an
Acting Assistant Attorney General, and other senior offi-
cials. In two weeks, the district court plans to hold a trial
to probe the Secretary’s mental processes.
This is all highly unusual, to say the least. Leveling an
extraordinary claim of bad faith against a coordinate
branch of government requires an extraordinary justifica-
tion. As evidence of bad faith here, the district court cited
evidence that Secretary Ross was predisposed to reinstate
the citizenship question when he took office; that the
Justice Department hadn’t expressed a desire for more
detailed citizenship data until the Secretary solicited its
views; that he overruled the objections of his agency’s
career staff; and that he declined to order more testing of
the question given its long history. But there’s nothing
unusual about a new cabinet secretary coming to office
inclined to favor a different policy direction, soliciting
support from other agencies to bolster his views, disagree-
ing with staff, or cutting through red tape. Of course,
some people may disagree with the policy and process.
But until now, at least, this much has never been thought
enough to justify a claim of bad faith and launch an inqui-
sition into a cabinet secretary’s motives.
Unsurprisingly, the government tells us that it intends
to file a petition seeking review of the district court’s bad
faith determination and its orders allowing extra-record
Cite as: 586 U. S. ____ (2018) 3
Opinion of GORSUCH, J.
discovery. Toward that end, it has asked us to stay tem-
porarily all extra-record discovery until we may consider
its petition for review.
Today, the Court signals that it is likely to grant the
government’s petition. It stays Secretary Ross’s deposition
after weighing, among other things, the likelihood of
review and the injury that could occur without a stay.
And it expressly invites the government to seek review of
all of the district court’s orders allowing extra-record
discovery, including those authorizing the depositions of
other senior officials.
Respectfully, I would take the next logical step and
simply stay all extra-record discovery pending our review.
When it comes to the likelihood of success, there’s no
reason to distinguish between Secretary Ross’s deposition
and those of other senior executive officials: each stems
from the same doubtful bad faith ruling, and each seeks to
explore his motives. As to the hardships, the Court ap-
parently thinks the deposition of a cabinet secretary espe-
cially burdensome. But the other extra-record discovery
also burdens a coordinate branch in most unusual ways.
Meanwhile and by comparison, the plaintiffs would suffer
no hardship from being temporarily denied that which
they very likely have no right to at all.
There is another factor here, too, weighing in favor of a
more complete stay: the need to protect the very review we
invite. One would expect that the Court’s order today
would prompt the district court to postpone the scheduled
trial and await further guidance. After all, that is what
normally happens when we grant certiorari or indicate
that we are likely to do so in a case where trial is immi-
nent. But because today’s order technically leaves the
plaintiffs able to pursue much of the extra-record discov-
ery they seek, it’s conceivable they might withdraw their
request to depose Secretary Ross, try to persuade the trial
court to proceed quickly to trial on the basis of the remain-
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Opinion of GORSUCH, J.
ing extra-record evidence they can assemble, and then
oppose certiorari on the ground that their discovery dis-
pute has become “moot.” To ensure that the Court’s offer
of prompt review is not made meaningless by such ma-
neuvers, I would have thought it simplest to grant the
requested extra-record discovery stay in full. Of course,
other, if more involved, means exist to ensure that this
Court’s review of the district court’s bad faith finding is
not frustrated. I only hope they are not required.