Analysis Law and Policy

What Happens to the Federal Courts in a Government Shutdown?

Jessica Mason Pieklo

It may be just a game for Republicans in the House, but the effect of their politicizing the judiciary has very real consequences.

Click here for all our coverage of the government shutdown.

With extremist Republicans in Congress insisting on shutting down the federal government over the contraception benefit in the Affordable Care Act, it’s looking increasingly likely the federal judiciary will be dragged into the crisis as well.

In an attempt to help prepare members of the judiciary for what could be coming, the Administrative Office of the U.S. Courts circulated a memo to its members warning a shutdown would result in widespread court furloughs and would worsen the “grave judicial crisis” that exists thanks to the $350 million Congress already stripped from the judiciary’s budget this year. According to the memo, the federal courts have enough reserve funds to run for about ten business days before shutting down all but their most essential functions. The effects of the shutdown would vary among judicial districts, the memo explained, since districts make their own independent budget decisions based on local considerations, such as distribution of case loads and labor needs. That gives each court some leeway in defining essential work, which is broadly defined to include all “activities necessary to support the exercise of the Article III judicial power and emergency activities necessary for the safety of human life and the protection of property.”

Meanwhile, the U.S. Supreme Court announced it will continue to operate through the end of this week, but offered no detail on what will happen to the Court beginning October 5. “In the event of a lapse of appropriations, the Court will continue to conduct its normal operations through October 4,” the Court says on its website. “The Court building will be open to the public during its usual hours. Further notice will be provided in the event a lapse of appropriations continues beyond October 4.”

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The Supreme Court’s term is set to begin on Monday, October 7, with oral arguments scheduled for Tuesday, October 8, in McCutcheon v. Federal Election Commission, a case that challenges individual limits to campaign contributions and is considered by many to be one of the most significant cases on the Court’s already high-profile docket. According to reports, there are no plans as of yet to delay the start of the Supreme Court’s term.

Even if Congress comes to some kind of funding resolution, it will do nothing to fix the ongoing funding crisis of the federal courts. And with judicial nominations languishing, case load burdens have reached catastrophic levels in some jurisdictions. Things are so bad, even Chief Justice John Roberts has pleaded with Congress to end the political game-playing with the federal court. But those requests continue to be ignored, which means at best our federal courts come out of this latest political stunt as hobbled as ever.

There was a good argument to be made before the shutdown threat that conservatives had unintentionally created a constitutional crisis by failing to confirm President Obama’s judicial nominees in a timely fashion and by decimating the federal courts’ budget. Now, there’s a good argument to be made that conservatives are intentionally creating one.

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