How will the federal courts function if the shutdown continues?

This week, the Administrative Office of the U.S. Courts said it could sustain its current operations until January 31 if the current partial federal government shutdown continues. But what happens to the federal judiciary if that deadline passes?

For the most part, the federal judiciary would then operate under the terms of the Anti-Deficiency Act. Under the terms of the Act, only “excepted” areas in the government receive funds during a shutdown and thus stay in operation and only people performing “mission critical work” would remain at the courts.

“This includes activities to support the exercise of the courts’ constitutional powers under Article III, specifically the resolution of cases and related services. Each court would determine the staff necessary to support its mission critical work,” the Administrative Office said in a January 22 statement.

While the federal courts will continue to operate, not all of their services may be available at the 94 district courts and 13 appeals court that make up the federal system after January 31, unless the funding situation changes in Washington. Since the shutdown began in December, the courts have used money from fees and funds allocated from non-year budget sources to function.

The Administrative Office bluntly said on Tuesday that “no further extensions beyond Feb. 1 will be possible.”

In December 2018, the Office gave some general guidance about its work during the shutdown. “Most proceedings and deadlines will occur as scheduled. In cases where an attorney from an Executive Branch agency is not working because of the shutdown, hearing and filing dates may be rescheduled,” it said.

The Justice Department, which is part of the Executive Branch, also said as much in its public January shutdown policy statement. “The federal courts are continuing to hear and decide cases during the lapse in appropriations utilizing fees and no-year appropriations. When this source of funding is exhausted, furloughs may impact the number of cases courts will hear,” it said on January 10.

Justice Department attorneys would continue in federal criminal cases “without interruption as an activity essential to the safety of human life and the protection of property.” In civil cases, their participation would be “curtailed or postponed to the extent that this could be done without compromising to a significant degree the safety of human life or the protection of property.” If a court orders the Justice Department's attorneys to continue in a civil case, that would be enough legal authority to move such cases forward. However, the Justice Department warned that the “receipt of summonses, pleadings and motions by mail may be delayed.”

The Congressional Research Service has offered some guidance about how the federal courts would determine which of its employees will stay at work and which employees are furloughed. The employees will get back pay when the shutdown ends.

“In the judicial branch, judges would not be subject to furlough, nor would core court staff and probation and pretrial services officers whose service is considered essential to the continued resolution of cases,” the CRS said in December 2018.

However, the Supreme Court Justices and all appointed federal judges will get paid. The Constitution's Article III, Section 1, says, “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.”

Another possible outcome is that jurors won't get paid for their services immediately during the shutdown and the courts' ability to pay vendors would be affected. The Los Angeles Times said that in the Ninth Circuit, naturalization ceremonies and education programs would be stopped, and that some courts could close on days when no hearings are scheduled.

And the ability of public defenders and private attorneys who voluntarily represent the indigent to do their job is affected by the shutdown. One federal judge told NPR those factors could raise a basic Sixth Amendment question about the rights of the accused to a speedy and public trial.

“The old adage that ‘justice delayed is justice denied’ is true,” said U.S. District Court Judge Jon Levy from Maine. “So I think we have to be concerned about challenges regarding the right to a speedy trial that we typically don’t face.”

Scott Bomboy is the editor in chief of the National Constitution Center.