There’s a lot of bad lawyering out there.
Hey, not everyone can topple injustice at the Supreme Court. Someone out there has to argue that toothpaste and soap aren’t necessary for sanitation. More importantly, bad lawyers are needed to keep this website’s stream of content flowing.
But watching the Department of Justice whiff this badly is a sight to behold.
To catch up, the Supreme Court — in the most fractured, indirect way possible — expressed its pronounced lack of confidence in the administration’s stated rationale for including a citizenship question on the 2020 census. This may have something to do with the release of documents that basically said, “so we’re lying about our rationale for this question.”
Faced with this challenge, there are a few acceptable ways out for a lawyer. They could claim that those documents were never seen by the decision-makers. They could argue that even if they were, they were ignored. They could go true YOLO and argue that there’s nothing wrong with those documents.
The point is they can only really say that their stated reasons for pushing the census question are still valid. Instead, they did this: A new rationale. Just junking the prior explanations and admitting they were just kidding about those all along. Remember, the Court already found those stated reasons facially acceptable so all they need to do to rehabilitate their case is dispel any concern that it’s all a pretext. Rather than go that road, they’re junking everything, along the way confirming that the original rationale was so pretextual that they can’t see any way to rehabilitate it.
Just… wow. Since they’re going to just try some “John Roberts has made his decision, now let him enforce it” shenanigans, there’s really no reason for the DOJ to have blown up their own case on the way out the door.
In any event, whatever your thoughts on the case, this is how the DOJ is handling it. This is either atrocious lawyering or some intentional act of sabotage by some of DOJ staff who’ve not undergone a consciencectomy.
[Reproduced from Above the Law, July 5, 2019]
