Justice Brett Kavanaugh’s first vote as a member of the Supreme Court could come as soon as Tuesday or Wednesday on a Trump administration request testing how much power courts should wield over top executive branch officials.
The administration has already made one unsuccessful run at the high court on the issue: It asked Justice Ruth Bader Ginsburg last week to step in to block depositions of Commerce Secretary Wilbur Ross and Justice Department civil rights chief John Gore in lawsuits challenging Ross’ decision to put a question about citizenship on the 2020 U.S. Census.
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Ginsburg rebuffed the stay request, but Justice Department attorneys have indicated they plan to return to the Supreme Court with another emergency stay application within days unless they get full relief from lower courts, which seems unlikely.
Justice Department lawyers argue the depositions of Ross and Gore ordered by a federal judge in New York City constitute an unwarranted intrusion into executive authority and could prove distracting to senior officials with important duties.
It’s the kind of argument that could appeal to Kavanaugh, who has advocated broad interpretations of executive power. However, deferring to the Trump administration within days of joining the court could appear to confirm many of Kavanaugh’s critics’ claims that he’s likely to be a rubber stamp for Trump and his agenda.
“It certainly seems likely that, if the Court is divided 4-4 as to whether to grant a stay, Justice Kavanaugh is going to have to participate in resolving the Ross dispute,” University of Texas law professor Stephen Vladeck said.
Kavanaugh’s early predicament could be so awkward that Chief Justice John Roberts might try to head it off, the professor added.
“I wonder if, in such a circumstance, the chief justice might vote against a stay at least in part to avoid that prospect — since, either way, a tie-breaking vote from the newest Justice in a case like that could be perceived as deeply political,” Vladeck said. “So, if it’s a bellwether for anything, it may be a bellwether for the chief justice as much as it is one for Justice Kavanaugh.”
Kavanaugh is expected to take the bench for the first time at the Supreme Court on Tuesday as the justices hear arguments in three criminal cases relating to the application of three-strikes-and-you’re-out provisions in federal law that apply a 15-year mandatory minimum to federal offenders with three prior serious convictions.
Kavanaugh’s newly minted clerks are expected to begin work at the high court as soon as Sunday to prepare for the looming arguments, a source close to the new justice said Saturday night.
Kavanaugh won’t have to immediately cast any public votes in the cases being argued and his decisions aren’t likely to emerge until the court prepares formal opinions and releases them — a process that typically takes weeks or months.
However, emergency stay applications like the one the Trump administration filed last week in connection with the Census-related suits are typically acted on within days and sometimes within hours. Ginsburg appears not to have referred last week’s request to the full court, perhaps because she considered it premature, but justices typically circulate stay applications considered substantial to their colleagues for action.
There are increasing signs that the lower courts are unlikely to defuse the current dispute in a way that will satisfy the Trump administration and avoid further attempts to involve the high court.
Two weeks ago, a 2nd Circuit panel turned down the Justice Department’s petition seeking to block the deposition of Gore, who serves as the acting assistant attorney general for civil rights and drafted a key legal memo last year justifying adding the citizenship question to the coming decennial Census.
And just Friday, U.S. District Court Judge Jesse Furman — who is overseeing a pair of lawsuits challenging the decision on the citizenship question — issued another directive certain to gall the administration. He ordered the Justice Department to turn over a series of internal Justice memos to lawyers pressing the suit.
One of them is a briefing paper delivered directly to Attorney General Jeff Sessions — the kind of document executive branch attorneys almost always try to avoid having released.
The administration still stands some chance of averting the deposition of Ross, which was scheduled for Thursday but is currently on hold because of a 2nd Circuit order. An appeals court panel is expected to wrestle with that issue on Tuesday, but it’s unclear if it will be argued in public or simply resolved by the judges behind closed doors.
How the administration can halt the scheduled Wednesday deposition of Gore without Supreme Court action is unclear. A Justice Department lawyer sent letters to the 2nd Circuit on Friday noting that Ginsburg seemed to instruct the appeals court to give the Supreme Court enough time to act if the government’s requests to head off the depositions are turned down.
But the government’s petition to block Gore’s deposition had already been rejected and it’s unclear whether the appeals court plans to revisit that decision or even perhaps put it on hold.
Furman has said in his orders on the depositions and document demands that time is of the essence because he plans to hold a trial on the suits early next month.
When similar disputes arose late last year in suits over Trump’s decision to end the program protecting so-called Dreamers, the Supreme Court initially split along ideological lines, 5-4. All the Republican-appointed justices voted to halt a San Francisco-based federal judge’s order to disclose more records about the decision, while all the court’s Democratic appointees joined Justice Stephen Breyer’s 10-page dissent.
However, less than two weeks later, the justices appeared to patch up their differences, issuing an unsigned opinion that suspended an order that government lawyers said could have forced officials to review more than 1.6 million documents. The high court said the judge should first resolve threshold questions about the lawsuits before considering forcing such disclosures.
Furman’s order on Census-related documents is considerably narrower than the one the justices halted in the DACA suits. But orders requiring sworn testimony from high-ranking officials, especially Cabinet members, are extraordinarily rare.
The last sitting Cabinet official to testify in a civil suit appears to have been Interior Secretary Bruce Babbitt, who in 1999 was required to take the stand at a trial over alleged mismanagement of trust funds benefiting Native Americans.
Advocates for states, cities, counties and mayors suing to block the citizenship question because they fear it will prompt noncitizens and recent immigrants to avoid being counted insist that calling on high-level officials to testify is not as rare as federal government lawyers suggest.
New York Attorney General Barbara Underwood’s office said in a letter to the 2nd Circuit Saturday that lawyers there recently became aware that during the Carter administration, Secretary of Commerce Philip Klutznick was forced into at least one deposition in a suit alleging the 1980 Census undercounted New Yorkers.
“That this deposition took place provides additional confirmation that, contrary to defendants’ suggestion, a deposition of Secretary Ross would not be unprecedented,” Deputy New York Solicitor General Steven Wu wrote.