U.S. Supreme Court Justice Ruth Bader Ginsburg. Photo: Carmen Natale/ALM.

The U.S. Supreme Court has paused extra-record discovery and the depositions of a U.S. Department of Justice official and U.S. Commerce Secretary Wilbur Ross in a lawsuit over his agency’s decision to ask about citizenship on the 2020 U.S. Census.

The order from Justice Ruth Bader Ginsburg—the circuit justice for federal courts in the Second Circuit—stayed three orders from the district court in the case that allowed extra-record discovery and the depositions pending review of those decisions by the high court.

U.S. Solicitor General Noel Francisco requested the stay in an application to the Supreme Court late Tuesday after the Second Circuit Court of Appeals declined to review a decision by U.S. District Judge Jesse Furman of the Southern District of New York that compelled Ross to be deposed in the lawsuit.

It’s the second time Francisco has asked the Supreme Court to stay discovery in the lawsuit pending review of the lower courts’ decisions. Ginsburg denied an application for the same request last week, saying they would review the Second Circuit’s decision on Ross’s deposition when the time came.

The order from Ginsburg expires at 4 p.m. on Thursday, which is the day Ross is scheduled to be deposed. Discovery is scheduled to be completed in the case at the end of this week.

The deposition of John Gore, acting assistant attorney general for civil rights, was scheduled for Wednesday morning but will be delayed until the stay is lifted. The same goes for any extra-record discovery sought by the plaintiffs in the lawsuit during that time.

A spokeswoman for Attorney General Barbara Underwood, who is leading a coalition of 18 state attorneys general in the lawsuit, did not offer additional comment on the order Tuesday evening. A lawsuit brought by the American Civil Liberties Union and New York Civil Liberties Union has been consolidated into the case.

The spokeswoman said earlier Tuesday that the Second Circuit’s decision denying the administration’s petition to review Furman’s decision on Ross was another step forward in the lawsuit.

“The Trump administration has repeatedly tried to block discovery in our suit—and courts have repeatedly rejected their attempts,” said Amy Spitalnick, spokeswoman for Underwood. “You have to wonder what they’re trying to hide. We’ll get to the bottom of how the decision to demand citizenship status was made, as we continue our case to ensure a full and fair census.”

The Commerce Department declined to comment on the order.

Underwood’s office has already obtained testimony from a handful of officials in the Trump administration who said during their depositions that only Ross would have firsthand knowledge of conversations about adding the citizenship question. The plaintiffs then moved to compel his deposition, which was granted by Furman in September.

Francisco argued against the decision in his application to the Supreme Court Tuesday evening.

“The court thought Secretary Ross’s testimony uniquely vital because he was personally involved in the decision to reinstate a citizenship question and the decision is of great importance to the public,” Francisco wrote. “The Secretary’s personal involvement in a significant policy decision is not exceptional, and the importance of the Secretary’s decision in this case does not distinguish it from many other decisions of national importance that Cabinet Secretaries make.”

Underwood’s office filed the lawsuit in April after the Commerce Department announced it would add a question about immigration status to the next census. Underwood’s office has argued the question will decrease turnout for the census in states with large immigrant populations, like New York.

That could decrease the number of representatives those states have in Congress and the Electoral College, Underwood’s office argued. It could also mean less federal funding in areas like education and health care. Seventeen other states have joined Underwood on the suit.

Senior Trial Counsel Elena Goldstein and Executive Deputy Attorney General Matthew Colangelo are leading the case for New York. Kate Bailey is the lead attorney for the Trump administration.

A trial date in the lawsuit has been set by Furman for Nov. 5.


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