Justice Ginsberg Back on the Bench, Contentious Case Teed Up

for a lung cancer in December. Is Justice Ruth Bader Ginsburg, the leader of the courts liberal wing, joining us as Bloomberg New Supreme Court reporter of Greg's store. Who was there, so, Greg? How did she appear on the bench June? She appeared very much like she she always does. She climbed the three steps that the justices have to climb to get to the bench without any apparent difficulty and without any assistance.

She asked the very first question of the argument barely a minute into it, and seemed very much engaged in it. Did Chief Justice John Roberts say anything about her return. He did not. He treated it like an normal day, made no mention he has been mentioning her in in past cases when she was absent, to say that she would be taking part via the transcripts and the briefs in the case, but with her back on the bench,

he didn't need to say anything like that. Okay. Well Ginsburg had attended the private conference of the justices on Friday. That's the day the court agreed to decide whether the Trump administration can ask about a citizenship question on the census, and a judge barred that question after a trial. Tell us more about what's before the court. This could be the biggest case of the year. The Trump administration, as you said, is trying to add a question asking people

about citizenship on the de cential census. In that's a question that has been asked previously, but not asked of

every person during the last several censuses. And the question for the court is not just whether that they can add that question, but whether they followed the proper rules that administrative agencies are supposed to follow in doing that, whether they, for example, adequately explain the reasons, and whether they considered the facts that were before them about the possibility that asking the senses question might lead people not to respond, they might lead to a less accurate sensus.

So what exactly is the question they'll be answering because the judge in the trial when pretty far saying that Secretary Ross acted in an arbitrary and capricious manner and a veritable smartest board of ways he violated administrative procedures. There are a whole lot of questions in here. It could be a rather complicated argument. That's in part because they skipped over the appeals court level, and so there is less winnowing out of the issues in the case.

The Trump administration is saying, among other things, that the states and advocacy organizations suing don't have legal standing to file the suit in the first place. They're also saying that this entire question is a matter that is up to the Census Bureau on the Commerce Department, and the

courts have no role whatsoever. And if the court gets past those two questions, uh, then the justices will look at the stuff you were just talking about, whether they the Census Bureau in the Commerce Department acted in an arbitrary and capricious way, essentially by ignoring the evidence that was before them and giving an explanation for why they did it that didn't square with what actually happened. You mentioned that this is going to possibly be the biggest

case for President Trump of the term. It could also be the most politically divisive. Explain why, Yeah, and we have some evidence that this has been politically divisive before.

There's been a lot of back and forth on preliminary issues in this case at the Supreme Court, and in one earlier example, the three conservative Justices Thomas, Gors and Alito said they would have stopped this trial that was going on in federal in New York, distinguishing themselves from a couple of the other Republican appointed justices robertson Kavanaugh,

as well as the more liberal justices. It does seem like this will be one of those cases that divides the Court along ideological lines, and Chief Justice Roberts and Justice Kavanaugh will probably be the ones casting the deciding votes. So greg they've been staying away from most of these very politically divisive cases and issues since Kavanaugh took the bench. Is it that they had to do this, that there was sort of no choice? Yeah, pretty much. You know

this is there's a looming deadline. The Census Bureau says that they have to start printing the questionnaires by June. There wasn't time to let the case play out a little more at the lower court level, for example, by letting the appeals court decided. And ultimately, if if a court is going to tell the government, a government agency, a cabinet official, you can't do something virtually always the Supreme Court wants to be the one who's saying that they don't want to leave it to a federal judge

to make the final decision. So it would have been a major surprise if the Supreme Court had not agreed to take this up. And because of that deadline, they need to take it up on an expedited basis. So, as you and I have discussed, the Trump administration has several times tried to bypass appellate courts to get to the Supreme Court. So are you saying that this is really not a sign that the Supreme Court is giving

in to the Trump administration on bypassing appellate courts. This is a separate issue, correct, And I can give you counter examples where the Supreme Court has not agreed to it to hear things bypassing the appeals courts. In this case, even the folks on the other side, the states led by New York and the civil rights groups said if the Supreme Court was going to take this case up,

it should do so on an expedited basis. It should skip the appeals court level simply because there's not enough time to get this case through another court level, and have the Supreme Court decided and have the Sense of S Bureau start printing those questionnaires when they need to in June. So the Court did other things today besides listening to Justice Ginsburg asked her first questions in a couple of months. Tell us about the consideration of the scope of the Clean Water Act. Yeah, so this is

a case the Court has agreed to hear um. Somewhat surprisingly, they're going to hear it during the next term because they had expedited the briefing in it to some degree. This is a case involving uh treated wastewater that ends up in the Pacific Ocean near Hawaii, and the question is whether to discharge this pollution which goes underground before emerging in the Pacific Ocean. The question is whether you need a federal permit for that discharge. Lower courts are

divided on the issue. Not surprising that the Supreme Court agreed to take it up also an issue that might well divide the Court along ideological lines. Is the court's calendar pretty full for the rest of this term where they still have room for squeezing in more cases. Yeah, it's totally full, and it's not even clear where they're putting the senses case, the for all argument. A calendar now has twelve cases and now will thirteen now with the Census case, So they're going to have to hear

more than they they usually do. It's a bit of a backloaded term, more so than the justices would want. What looks to be the biggest decisions that are now going to be the Census case, a case involving partisan jerrymandering, and a case they're gonna here next week involving a cross that serves as a World War One memorial and

whether that violates the Constitution's First Amendment. Well, we will be back to you then because it sounds interesting and there may be some decisions tomorrow, So maybe as soon as tomorrow. Thanks so much, Greg, that's Bloomberg New Supreme port Report of Greg's star. Thanks for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple Podcast SoundCloud and on bloomberg dot com slash Podcast. I'm June Brasso. This is Bloomberg