NEW YORK - A New York federal judge whose rulings were criticized by two U.S. Supreme Court justices tossed their words back at them Friday in refusing to postpone a trial over whether the government acted appropriately to put a citizenship question on the 2020 U.S. census.
U.S. District Judge Jesse M. Furman also heavily criticized Justice Department lawyers as he left a Nov. 5 trial date in place, saying they were asserting “some sort of dignitary harm flowing'' from the scrutiny of an executive branch agency.
“The decisions of executive branch agencies are not immune from scrutiny by the federal courts,'' Furman said.
The trial stems from lawsuits brought by a dozen states and big cities, among others, who say the citizenship question will discourage immigrants from participating and dilute political representation and federal dollars for states that tend to vote Democratic.
The Supreme Court this week temporarily blocked Furman's decision to let Commerce Secretary Wilbur Ross be questioned by lawyers about how he decided to add the citizenship question.
It let the gathering of other evidence continue, including Friday's deposition of John Gore, acting assistant attorney general.
In a partial dissent, Justices Neil Gorsuch and Clarence Thomas criticized and belittled Furman's findings, saying the trial would “probe the secretary's mental processes.'' They suggested Furman delay it and await further high-court guidance.
“This is all highly unusual, to say the least,'' wrote Gorsuch, joined by Thomas.
“Leveling an extraordinary claim of bad faith against a coordinate branch of government requires an extraordinary justification,'' Gorsuch said. “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, disagreeing with staff, or cutting through red tape.''
Furman responded forcefully Friday, even partially quoting Gorsuch.
“It is the government's conduct in this case, not the court's review, that is ‘highly unusual, to say the least,' '' Furman wrote.
The judge noted Justice Department attorneys confidently predicted that the Supreme Court ultimately would block all evidence collection, limiting findings by Furman to the administrative record.
“But they base that prediction almost exclusively on the dissent,'' Furman said.
He defended evidence collection, which is supposed to occur only when agency decision-makers engage in bad faith or improper behavior.
Furman cited “most exceptional'' circumstances, saying Ross seems to have decided to add the question before asking the Justice Department to request it. He also cited proof Ross had overruled senior Census Bureau staff who concluded adding it was very costly and would harm the census count.
Furman said there were indications the Census Bureau had deviated significantly from standard operating procedures and Ross' stated justification was pre-textual.
“Most significant, the court found reason to believe that Secretary Ross had provided false explanations of his reasons for, and the genesis of, the citizenship question,'' Furman said. “If those circumstances, taken together, are not sufficient to make a preliminary finding of bad faith that would warrant extra-record investigation, it is hard to know what circumstances would.''