Access to the courts is fundamental to our constitutional republic, but funding for the federal judiciary could run out at some point after a government shutdown.   What would happen should that occur is anyone’s guess.  What we do know is that a lack of funding for the courts could put the Constitution’s fundamental protections at risk.

During a shutdown, the federal courts, another vital facet of our constitutional republic, maintain operations at a normal scale using reserve funds.  But limits on those funds will result in delayed cases, shortened operating hours, and even the shuttering of the D.C. Superior Court’s Marriage Bureau.  It’s not clear what would happen to the courts’ core functions when those reserve funds are exhausted.

For the Federal Courts, a Funding Lapse Would Be Uncharted Territory

During a government shutdown, the judiciary continues to pay by using reserve funds, which include money from court-related fees.  But, eventually the reserve funds will expire.  The federal courts would be heading into uncharted territory if the reserve funds run out.  The courts have said that if that happens, they will operate under the terms of the Anti-Deficiency Act which allows “essential work” to continue during a lapse in appropriations.

Each court would self-determine the staff necessary to support its mission-critical work.  In other words, the U.S. Supreme Court and each circuit court, district court, and bankruptcy court has a lot of discretion to determine which employees count as “essential” or “non-essential.”  So, the courts could end up acting very differently.

There is no historical precedent to help predict what would actually happen if a shutdown continues after the existing funds expire—previous government shutdowns ended before courts exhausted their reserve funds.  The courts’ ability to continue operating will depend on many employees, such as clerks, court reporters, interpreters, and administrative officials, working without pay.  Other entities that the courts rely on, such as U.S. Marshals, could also be affected.  It is also unclear whether jurors will continue to show up at the courts based only on promises that they will be paid at some time in the future.  And there’s also the issue that contractors who support courthouse operations may stop getting paid, meaning that some courthouses will no longer be able to be open.

A court funding lapse also risks reverberating throughout the justice system.  For example, the First Step Act, a bipartisan criminal justice reform bill that, among other things, makes it easier for prison inmates who are terminally ill to win their release.  But that process requires timely action in the court system.  In the event of a funding lapse, the courts may be unequipped to handle compassionate release requests.

The Shutdown Would Have a Vast Effect on the Courts

A lack of funding for government attorneys would stymie courts’ efforts to operate normally.  In the past, judges in several districts have issued blanket orders delaying all civil cases in which the United States is involved.  In addition, the shutdown would cripple immigration courts, which are housed under the Justice Department rather than the judiciary.

The Justice Department would furlough most of the immigration.  Consequently, thousands of cases would be postponed on the court’s active docket, which already has a backlog of cases even before a shutdown.  Most of these cases involve people who have been released from custody or have never been in custody—many of whom have waited years for their court date.

We Need a Scenario Map for Future Lapses in Funding

We can only speculate about what would actually happen if there ever was a prolonged shutdown and the courts use up all of their reserve funds.  But if shutdowns become more common, we may need more formal processes that would help the federal courts respond to lapses in funding and the various scenarios that could ensue.  Time will tell.....or not.