No Royal Road

This is why there is no "royal road" Trump can travel from the trial courts in New York and Maryland back to the Supremes.  First, that whole "replacing the lawyers in the fourth quarter" maneuver (which was probably the lawyers bailing on the case, not the DOJ deciding to use their second string players):

On Monday, the [ACLU] — one of several that challenged the census citizenship question — asked the judge to order an explanation from the Justice Department as to why several lawyers on the administration’s team are being replaced before he allows them to withdraw from the case. The ACLU said it was seeking such assurances so that an “en masse” withdrawal by DOJ attorneys would not “prejudice” it or otherwise “hinder resolution of this case.”

The ACLU is also requesting that the DOJ attorneys “whose representations or conduct is at issue in the pending or forthcoming motions” stay under the court’s jurisdiction. The ACLU has already requested sanctions for two government witnesses for alleged misleading testimony. Its latest filings referenced the about-face the administration has done on whether the census forms needed to be finalized by June 30.

This is not a minor matter, and courts are authorized to not allow lawyers to withdraw from representation willy-nilly.  Whenever a lawyer withdraws from a case, he/she has to show good cause to the court, and be permitted to no longer represent the client/organization in that court case.  This is not an idle jab by the ACLU, in other words.  And it won't allow the case to be completed anytime soon.

Why does that matter?  Because this is the New York case, the one sent back to the trial court for more proceedings.  The DOJ can't get the Supreme Court to re-hear this appeal without some final rulings by the trial court first, and even then it would be extraordinary relief for the Supreme Court to reach past the appellate court again to hear these issues again.  Withdrawing lawyers from that case is not a move to expedite a final ruling so the case can go up on appeal; challenging that withdrawal delays any final ruling even further.  Without that final order, this case can't get back to the Supremes at all.  And all that terror about Roberts' "back door" and Trump's getting the ruling he wants becomes even more unlikely, because nobody can suspend the beginning of the Census.  Indeed, nobody is asking the courts to do so yet, and it's hard to see on what grounds that could be granted.  The Supremes said the citizenship question was not unconstitutional; they didn't say it was essential to the conduct of the census as established by the Constitution.

There's also this, also courtesy of the ACLU:

The ACLU, in a filing last week, pointed to numerous examples of that claim as the organization asked a federal judge in Manhattan to hold the administration to its word and block it from making any more changes to the census, now that the June 30 deadline has passed. TPM found a handful more instances of DOJ lawyers making this claim in its own review of the Justice Department’s recent assertions in the Maryland census case.

Among other things, this representation to the Supreme Court which got them to take up the appeal as an emergency in the first place:

Perhaps the most damning example is a statement from the Solicitor General Noel Francisco in a June 20 letter to the Supreme Court rebutting suggestions, prompted by a Census Bureau official’s testimony, that the the deadline could be pushed back to October.

Francisco said any change to the forms after June 30 would be “infeasible,” absent additional appropriations from Congress, 

That seems to be supported by the fact the DOJ was dropping any challenge to the Supreme Court decision, until they weren't; and the representation to the trial courts that the printing of the Census was underway, without including the citizenship question (which the DOC is still enjoined from using in the census).

What is the point of that filing by the ACLU, other than pointing out the lies of the DOJ?

The ACLU is asking for the judge to permanently block “altering the 2020 decennial census questionnaire or otherwise delaying the process of printing the 2020 decennial census questionnaire after June 30, 2019, for the purpose of including a citizenship question.”

The Justice Department will have to respond by Friday, according to the judge’s order, and there will be oral arguments on the issue later this month.

Evidence will have to be presented as to which deadline is the valid one; and that evidence will either support, or impugn, the June 30 deadline.  If that deadline is valid, it's game over, because the courts are not yet being asked to suspend the beginning of the census so this question can be included, and there's precious little grounds for making that a requirement of the census, anyway (i.e., can the enumeration of the peoples be done without it?  The answer is clearly:  "Yes.")

Oddly enough, Kellyanne Conway undercut that very essential argument this morning:

.@KellyannePolls plays some Three-Card Monte here to leave the impression that decennial census asks about toilets.

**This is in the much smaller American Community Survey, as are many other more trivial questions.**https://t.co/5WAVVHfofk https://t.co/1zEHZ47Xt3

— Aaron Blake (@AaronBlake) July 9, 2019

Yes, the DOC does ask such questions, but they don't need the decennial Census to do it.  Which means they can ask the citizenship question without using the census to do it, which means it's going to be hard to argue the Census isn't the Census without a citizenship question.

And if the October deadline is the "true" deadline, the DOJ still has to present evidence to the trial court on what its "new" reason for the question is, because the Supreme Court cannot hear evidence not presented in the trial court.  By the time that is done, the Supremes will be returning to regular order and unless they take up the case again as an emergency, the deadline will have passed.  It may well pass anyway, depending on the trial court's docket (there are two motions before the New York court at least, as well as the consideration of the ACLU's motion for sanctions; and the DOJ is still trying to change lawyers.  The Motion for Sanctions may well keep that from happening, and none of this is speeding the case to a final decision.  The timetable for presenting new evidence to support the citizenship question and getting that matter resolved is stretching well into the fall.)  And there's still the hearing and appeal happening in the Maryland case on the equal protection argument, an argument also before the New York trial court.  If the latter court decides to hear that argument, it could well delay any final decision until after Hallowe'en.

I'm sure it's a minority opinion, but I don't think the Supremes are anxious to re-enter this battle before Hallowe'en, much less expedite a ruling by that date.  The appearance of giving Trump what he asks for is too blatant, even for Gorsuch and Kavanaugh (Thomas would have no problem with that).  I think this issue is back to regular order for them, especially since they can't grab both the New York case and the Maryland case and resolve the issue entirely by October 31, without looking like nothing more than Trump's toadies.  As Dahlia Lithwick put it:

The court is an august institution, one that’s drunk, to be sure, on its share of self-congratulatory mythology, but also capable of inspiring awe and reverence for the law and the Constitution and the virtues of logic and civility. Yet within a week of suffering his first major loss at the high court, Trump has turned two centuries of elevated legal thought and studied institutional understatement into a constitutional reality show.

The Court is quite proud of the former, and quite aware, now, of the latter.  Their incentive to give Trump another bite at the apple is effectively nil.  Especially since the minority in the last case knows they would not have a majority in the new "emergency".

Game over, man!  Game over!