Justice Ruth Bader Ginsburg oversees the New York-based 2nd U.S. Circuit Court of Appeals. | Alex Wong/Getty Images Legal Supreme Court puts census-suit depositions on hold

A dispute over a court-ordered deposition of Commerce Secretary Wilbur Ross headed back to the Supreme Court on Tuesday night after a federal appeals court denied the Trump administration’s request to block the testimony.

In an order Tuesday afternoon, the 2nd U.S. Circuit Court of Appeals rejected the Justice Department’s request to halt the deposition in lawsuits related to Ross’ decision to add a question about citizenship to the 2020 census.


However, Justice Ruth Bader Ginsburg — who oversees the New York-based 2nd Circuit — put a temporary hold on that deposition Tuesday evening in response to an emergency stay application submitted by Solicitor General Noel Francisco.

The dispute about how much deference judges should show to executive branch officials could become the first matter on which the newly confirmed Supreme Court Justice Brett Kavanaugh publicly votes. Justice lawyers took the issue to the high court for the first time last week, asking Ginsburg to halt the planned deposition of Ross, as well as a deposition scheduled for Wednesday for the acting head of the Justice Department’s civil rights division, John Gore.

Gore had been set to testify at 9 a.m. Wednesday, but Ginsburg’s order also suspended that order and instructed those suing the administration over the census citizenship question to file arguments with the high court by 4 p.m. Thursday.

In Tuesday’s order, the 2nd Circuit judges said the Justice Department had not made a sufficient showing to overturn a discovery-related order, like the one U.S. District Court Judge Jesse Furman issued requiring Ross to sit for a deposition. Such orders cannot be appealed at an early stage of litigation, so requests to overturn them are rarely granted.

“The District Court’s order requiring the deposition of Secretary Ross does not amount to ‘a judicial usurpation of power or a clear abuse of discretion,’” the 2nd Circuit order said.

“We find that the District Court did not clearly abuse its discretion in authorizing extra-record discovery based on a preliminary showing of ‘bad faith or improper behavior.’ The District Court, which is intimately familiar with the voluminous record, applied controlling case law and made detailed factual findings supporting its conclusion that Secretary Ross likely possesses unique firsthand knowledge central to the Plaintiffs’ claims. As the District Court noted, deposition testimony by three of Secretary Ross’s aides indicated that only the Secretary himself would be able to answer the Plaintiffs’ questions,” the court added.

Ross is scheduled to be in Europe during the middle of next week, a European Union spokesperson said Monday. It’s unclear whether that travel could complicate any attempt to delay the testimony. Furman has scheduled a trial on the suits to open Nov. 5.

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The 2nd Circuit ruling was issued by Judges John Walker, Raymond Lohier and William Pauley. Walker was appointed by President George H.W. Bush, Lohier by President Barack Obama and Pauley by President Bill Clinton. Furman is an appointee of Obama.

The suits allege that Ross lacked a legitimate reason to add the citizenship question to the 2020 census. It was last asked nationally on a decennial U.S. census in 1950.

The cases challenging the decision were filed by various states, cities, counties and civil rights groups. They contend the citizenship question would discourage foreigners, the foreign-born and their families from responding to the census, resulting in an undercount of areas with substantial immigrant populations.

A lawyer pressing one of the suits, Dale Ho of the American Civil Liberties Union, said the Trump administration is making a furious effort to head off court-ordered discovery in the cases.

“The Trump administration has pulled out all the stops to try to prevent us from taking testimony on the record as to its reasons for adding a citizenship question to the census — a major last-minute disruption to the census that every expert on demographics and survey research says will drive down census participation, costing states and counties with immigrant communities critical resources and political representation,” Ho said.

“As the District Court hearing this case concluded, these requests by the Trump administration to short-circuit fact-finding in our lawsuit are ‘frivolous,’ and every court to consider them has rejected them as such. At some point you have to wonder — what do they have to hide?” the ACLU attorney added.

Justice’s arguments in the latest high court submission are virtually identical to those it presented to Ginsburg last week: that depositions of senior government officials like Ross and Gore are unduly burdensome and that the legality of the citizenship question can be judged based solely on the documents the Trump administration has designated as the official basis for the decision.

Ginsburg rejected last week’s stay application without referring it to the full court. But she seems likely to refer the issue to her colleagues in the coming days.