On 15 February 2019, the US Supreme Court agreed to hear the census case on whether the Trump Administration could add the citizenship question to the 2020 census. The Court’s decision comes after, on 15 January 2019, the District Court for the Southern District of New York ruled in State of New York v US Department of Commerce, 18-CV-5025 (JMF) that Commerce Secretary’s decision to add the citizenship question violated the Administrative Procedure Act governing the creation of new regulations by administrative agencies. Following the ruling, the Justice Department asked the US Supreme Court to bypass the ordinary appellate stage at the US Court of Appeals and take the case in light of the approaching June deadline for printing census forms. The Court will hear the case in April 2019 and the ruling is expected to be delivered in June 2019, before the Justices adjourn for the summer (CNN).
Adding the citizenship question to the upcoming 2020 census became very controversial after some groups, such as the ACLU, had said that it would deter many illegal immigrants from participating in the census. This in turn would lower the official population numbers for States with a large portion of illegal immigrants, mainly California. This could have a considerable impact on the apportionment of federal funds and seats in the House of Representatives which directly depends on population numbers (US Constitution, Article 1, Clause 3). ACLU claims that adding the citizenship question would stop about 6.5 million people from entering their details in the census which could lead to the State of California loosing billions of dollars in federal funding as well as between one and three seats in the House of Representatives (The Hill).
The Trump Administration argues that the citizenship question is necessary in order to comply with the Voting Rights Act and that this question has been asked during all but one census from 1820 to 2000. But in January 2019, a District Judge (an Obama appointee) disagreed, holding that the rationale was ‘pretextual’ and the decision was made in violation of the Administrative Procedures Act because it had failed to ‘consider all important aspects of a problem’ as required by the Act, implying also that the true intentions behind the citizenship question was to deter participation (Bloomberg).
Ordinarily, the decision of the District Court for the Southern District of New York would have to be appealed to the US Court of Appeals for the 2nd Circuit. However, as with many other unfavorable judicial rulings, the Trump Administration petitioned the Supreme Court to hear the appeal bypassing the Court of Appeals. For the first time, the Court agreed. The Court’s decision is clearly motivated by the urgency of the matter given that census questionnaires must be ready in the summer of 2019. With an ordinary appellate procedure, it would not have been possible to meet this deadline. Given how rare it is for the Supreme Court to accept cases bypassing the Courts of Appeals, it is understandable that the Trump Administration is holding this decision as a small victory.
On 27 November 2018, in the case of R (on the application of Conway) v Secretary of State for Justice  UKSC B1, the UK Supreme Court refused to consider an appeal from the High Court (Divisional Court) where the Court had upheld the ban on assisted suicide as compatible with Article 8 of the European Convention on Human Rights. Assisted suicide remains illegal in the United Kingdom under the Suicide Act 1961, s2(1), despite numerous attempts to overturn the ban as in breach of the European Convention on Human Rights. In its short opinion, the Supreme Court relied on previous precedents from the European Court of Human Rights leaving the question of the so called ‘right to die’ for states to decide. As the decision was merely on the application for permission to appeal, the Claimant had to demonstrate only a ‘prospect of success’ upon a full hearing that would justify giving the permission. Nevertheless, the Court held “not without some reluctance […] that in this case those prospects are not sufficient to justify giving permission to appeal” (at para. 8).
Since the enactment of the Human Rights Act 1998, rendering the European Convention on Human Rights directly applicable in the United Kingdom, there have been several challenges to the Suicide Act 1961 as incompatible with the Convention. Most notably, in the case of Pretty v United Kingdom (2002) 35 EHRR 1, following a dismissal by the UK House of Lords, the European Court of Human Rights also ruled that Article 2 of the Convention could not be interpreted as containing any right to die. It was further held that although the ban on assisted suicide interfered with the right to private life under Article 8(1) of the Convention, it could be justified ‘for the protection of the rights of others’ under Article 8(2). 13 years later, a similar challenge was mounted in the case of Nicklinson v United Kingdom (2015) 61 EHRR SE7 but the European Court of Human Rights maintained its position from 2002 relying on a wide margin of appreciation states enjoyed on the question of assisted suicide. Interestingly, before the case reached the European Court of Human Rights, the UK Supreme Court (having succeeded the Appellate Committee of the House of Lords), had followed Pretty only 7-2, with Lady Hale and Lord Kerr dissenting. In her Dissenting Opinion, Lady Hale “reached the firm conclusion that [the] law [was] not compatible with the Convention rights […and…] little [was] to be gained, and much to be lost, by refraining from making a declaration of incompatibility.” (R (Nicklinson) v Ministry of Justice  UKSC 38 at para. 300).
Paradoxically, Lady Hale and Lord Kerr, who were both willing to hold the ban on assisted suicide incompatible with the European Convention on Human Rights in 2014, constituted the majority of the Supreme Court panel (along with Lord Reed) refusing the permission to appeal in Conway. In fact, they were in the position to accept the case on behalf of the Court, even in the face of opposition of Lord Reed.
President Trump has made clear on several occasions that judicial nominations are one of his top priorities. In terms of Appeal Courts, as of 15 September 2018, he has successfully appointed 26 Circuit Judges, with further 10 nominations pending before the Senate and another 3 positions awaiting his nomination (13 vacancies in total). Many commentators have been pointing out that President Trump might not only change the constitution of the US Supreme Court by appointing Judge Gorsuch (and most likely Judge Kavanaugh) to its bench, but also flip majorities of at least some Appeal Circuits. However, upon a closer examination, this seems rather unlikely, at least in President Trump’s first term in office.
The US Courts of Appeals are grouped in 11 Circuits in addition to the so called special DC Circuit. As of 15 September 2018, the 1st Circuit is the only one which has not had any vacancies since the last general election and as such it has a stable 4-2 Democratic majority. The 2nd Circuit has 3 vacancies but even if filled by President Trump, it will retain a Democratic majority of 7-6. The 3rd Circuit has 2 vacancies and it has already seen 1 judge appointed to its bench by President Trump in addition to 4 judges appointed by previous Republican Presidents so assuming President Trump fills those 2 empty seats, the Circuit will be evenly split 7-7 between the Republican and Democratic appointees. The 4th Circuit has also had 2 judges appointed to its bench by President Trump on top of 4 judges appointed by previous Republican Presidents but it retains a stable Democratic majority of 8-6. The 5th Circuit currently has 1 vacancy, 5 Trump appointees and 6 other Republican-appointed judges making its overwhelmingly Republican 12-5. The 6th Circuit is also overwhelmingly Republican with 4 Trump appointees on top of 7 other Republican-appointed judges adding up to a strong 11-5 Republican majority. The situation is similar in the 7th Circuit which has 4 Trump appointees in addition to other 5 judges appointed by previous Republican Presidents adding up to a stable 9-2 Republican majority. This is again seen in the 8th Circuit where President Trump has appointed 3 judges on top of 7 other Republican-appointed judges adding up to an overwhelming Republican majority of 10-1. The most liberal of all the Circuits, the famous 9th Circuit currently has 7 vacancies, 1 Trump appointee and another 5 Republican-appointed judges but even assuming all those vacancies are filled by President Trump, the Circuit will nevertheless retain a stable Democratic majority of 16-13. A stable Democratic majority of 7-5 will also hold in the 10th Circuit where President Trump has appointed 2 judges on top of another 3 appointed by previous Republican Presidents. The 11th Circuit is another Circuit which is evenly split 6-6 between the Democratic and Republican appointees after President Trump has appointed 3 judges in addition to another 3 Republican-appointed judges already on the bench. Finally, the DC Circuit consisting of 1 Trump appointee and 3 other Republican-appointed judges also retains a stable Democratic majority of 7-4.
Given the structure of vacancies inherited by President Trump, it is unlikely that his appointments will be able to flip any Appeal Circuit. As of 15 September 2018, despite any appointments made so far, and any other likely to be made in President Trump’s first term, Democratic-appointed judges hold majorities in 6 Circuits (1st, 2nd, 4th, 9th, 10th and the DC Circuit) and Republican-appointed judges hold majorities in 4 Circuits (5th, 6th, 7th and 8th). The only difference made by President Trump’s appointments to the Appeal Courts could be observed in the 3rd and 11th Circuits which moved from stable Democratic majorities to being evenly split. In any event, with the appointment of Judge Gorsuch and the likely appointment of Judge Kavanaugh to the US Supreme Court, it is not the Appeal Courts where President Trump intends to make his judicial legacy most visible.