Shutdown Threatens Court Operations

The government is shut down — and if it drags on, the judiciary won’t be spared.

Federal courts may be forced to limit their operations as soon as next week after funding lapsed at midnight.

The shutdown could eventually implicate court dockets across the country, delaying trials and other hearings as courts’ coffers run dry.

Today at least, all judiciary employees will report to work, Administrative Office of the U.S. Courts spokesperson Peter Kaplan told The Gavel, saying court fees and other balances would maintain judiciary operations through Friday.

“We will continue to assess available fees and balances after FY 2025 closes to determine if operations can be sustained beyond that date,” Kaplan said.

If courts run out of cash before Congress passes new funding, the judiciary would follow the terms of the Anti-Deficiency Act, a law that bars obligating or spending more money than lawmakers appropriated, Kaplan said.

“Federal courts would continue operating but would be limited to activities needed to support the exercise of the Judiciary’s constitutional functions and to address emergency circumstances,” he told us.

The government shut down Wednesday after Republicans’ seven-week stopgap proposal failed to advance in the Senate, where more than half a dozen Democrats would need to sign on to clear the chamber’s 60-vote threshold.

Beyond extending funding through Nov. 21, the proposal would also boost security funding for Supreme Court justices while leaving unaddressed requested increases for lower judges’ security.

The likelihood of a shutdown ramped up over the past week and increased further on Monday after congressional Democratic leaders met with President Trump at the White House on Monday and no breakthrough was made.

Democrats dug in on the issue of health care and extending enhanced subsidies passed in 2021 for Affordable Care Act plans. GOP leaders have said the issue of the tax credits, which expire at the end of this year, should be handled separately from the stopgap.

At the Justice Department, the shutdown plan exempts 89 percent of employees from furlough for the first five days. The department attributes the high percentage to its missions protecting the safety of human life and property and how some employees’ salaries are funded by multiyear appropriations.

Criminal prosecutions “will continue without interruption,” but civil litigation will be curtailed when possible.

“Litigators will approach the courts and request that active cases, except for those in which a delay would compromise to a significant degree the safety of human life or the protection of property, be postponed until funding is available,” the plan states.

Ultimately, judges will need to sign off on halting any pending cases. And if a judge refuses, the Justice Department will consider that as authorization to continue amid the shutdown.

The administration has already signaled they’ll ask judges to move ahead in high-profile challenges to Trump’s second-term agenda.

The left-leaning legal group Democracy Forward said in a press release last week that judges — who will continue to work throughout the government’s shuttering — have discretion to grant or deny the requests.

“It is imperative that the most pressing litigation currently happening continues to move forward, regardless of a potential government shutdown,” said Democracy Forward President and CEO Skye Perryman.

Meanwhile, immigration cases on the docket should still proceed, while others will likely be rescheduled for after funding resumes, according to Rep. Greg Stanton (D-Ariz.).

The shutdown has also spurred concerns about safety, given many judges have security details amid rising threats. Those safety measures will remain in place.

A U.S. Marshals Service spokesperson told Fix the Court’s Gabe Roth that all law enforcement members are excepted from shutdowns and must work “no matter what.”

“The vast majority of admin will be furloughed, but no deputies will be,” the spokesperson said, according to Roth. “All details, operations and routine services we may do will continue to be done by the deputies.”

The Gavel requested comment from the agency about the matter.

Over at the Supreme Court, the shutdown presents fewer problems.

While Congress created lower courts, the Supreme Court was established by the Constitution.

Supreme Court spokesperson Patricia McCabe told us that, in the event of a lapse in appropriations, the high court will keep conducting its “normal operations.”

“The Court will rely on permanent funds not subject to annual approval, as it has in the past, to maintain operations through the duration of short-term lapses of annual appropriations,” she said.

As the courts’ funds dwindle, it’s possible some judiciary employees could be furloughed, and they’d get back pay when the shutdown is over.

But both judges and Supreme Court justices will continue to be paid, as the Constitution requires.

According to Article III, Section 1: “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.”

That includes a shutdown.