If the Senate Republicans succeed in confirming President Donald Trump's nominee, Amy Coney Barrett, to the court quickly, she would be able to take part in arguments in the case.
A three-judge federal court panel said in holding the policy illegal that never in US history have immigrants been excluded from the population count that determines how House seats, and by extension Electoral College votes, are divided among the states.
Throughout U.S. history, that language has been interpreted to mean that all residents are counted, regardless of whether they entered the country legally.
"The Supreme Court rejected his attempt a year ago and should do so again", said Dale Ho, a lead plaintiffs' attorney with the American Civil Liberties Union who successfully argued against the now-blocked citizenship question the administration wanted on the 2020 census forms.
The administration told the court that the president retains "discretion to exclude illegal aliens from the apportionment based on their immigration status". A three-judge court in NY agreed, blocking Trump's move.
The Supreme Court justices said in their order on Friday that they would decide the issue by early January, when Trump must report the census results to Congress. New York, giving the administration an opportunity to revive the administration's policy.
"President Trump has repeatedly tried - and failed - to weaponize the census for his attacks on immigrant communities".
It is also not clear what would happen if Trump is defeated for reelection. The timing increases the potential for Trump to try to make the unprecedented change to who is included in the numbers while he is in the White House.
Trump is seeking to remove undocumented immigrants from the count used to determine how many House seats each state gets.
Update:This article and its title have been updated to reflect the new Census deadline of October 15, 2020. On Tuesday, the justices granted an appeal from Trump's lawyers and said the Commerce Department could halt its counting and field operations this week.
Directing the secretary to provide two sets of numbers, one derived from the decennial census and one not, and announcing that it is the policy of the United States to use the latter in connection with apportionment, the Presidential Memorandum deviates from, and thus violates, the statutory scheme.
This story originally appeared in Los Angeles Times.