Judges and court officials around the country are bracing for the likelihood that the federal judiciary will be unable to maintain its current operations within the next two weeks, once it exhausts the money it has been relying on since the shutdown began last month.
Already, courts have been cutting down on expenses like travel and new hiring. Court-appointed private lawyers who represent indigent defendants have been working without pay since late December, according to the Administrative Office of the U.S. Courts, which provides support for the court system.
There have been other disruptions. The Justice Department is among the executive branch agencies whose funding has lapsed, and at the department’s request, some federal courts have issued orders postponing civil cases in which the Justice Department is a party while the shutdown continues, according to the administrative office.
If the judiciary runs out of money, courts around the country will pare down their work to “mission critical” operations, officials said. Thousands of court employees will stop receiving paychecks, some workers are expected to be furloughed and more civil cases could grind to a halt. Jurors may have to wait to be paid until the shutdown is over.
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“We’re already having to make what I call triage decisions as to what we can do versus what we cannot do,” said Chief Judge Rubén Castillo of Federal District Court for the Northern District of Illinois, which includes Chicago.
The Trump administration has tried to blunt the effects of the shutdown on important government services by drawing up plans to recall thousands of employees in executive branch agencies like the IRS and the Agriculture Department.
But the courts present an area in which the damage from the shutdown is expected to worsen considerably. A crippled judiciary, with all the consequences that would entail for businesses and citizens alike who come before its courts, would only add to the pressure on President Donald Trump and lawmakers to find a way to reopen the government.
With roughly 33,000 employees nationwide and annual federal funding of under $8 billion, the judiciary makes up a tiny part of the federal budget. In recent years, it has accounted for only about two-tenths of 1 percent of annual federal spending.
But like other parts of the government, it relies on Congress to provide funding as part of the annual appropriations process, and it now stands as one of the many parts of the government whose funding lapsed in December after Trump demanded money for a border wall and congressional Democrats refused to go along.
Unlike other parts of the government, the courts have been able to keep afloat over the past few weeks by relying on court fees as well as other funds that were available. The courts are now expected to be able to continue funded operations through at least Jan. 25, and possibly until Feb. 1, the administrative office said.
When the courts run out of money, they will essentially have to react much the way that executive branch agencies did in December, limiting work to certain essential activities.
For the courts, that includes “activities to support the exercise of the courts’ constitutional powers under Article III, specifically the resolution of cases and related services,” the administrative office said.
The Supreme Court, federal appeals courts, district courts and bankruptcy courts around the country will have to decide on a court-by-court basis how they will change their operations and what staff will be needed to continue that work. Court employees, like executive branch employees affected by the shutdown, would work without pay or be furloughed.
Under the Constitution, appeals court judges and district judges would continue to be paid, according to the Congressional Research Service.
Court officials are grappling with all sorts of complications that could arise, including the possible effects on court reporters and court interpreters, as well as on jurors who are supposed to be paid for their service and reimbursed for transportation expenses.
In Brooklyn, the Federal District Court for the Eastern District of New York is planning to furlough some court employees, and groups that use courthouse facilities for occasions like bar association meetings or continuing legal education are being told to make other plans.
“There’s a lot of angst, I can tell you that,” Eugene J. Corcoran, the district executive for the Eastern District, said of the sentiment among workers.
In the 9th U.S. Circuit Court of Appeals, which covers much of the West, one idea being considered is to close the appellate courthouses to the public for one weekday per week and furlough employees that day.
“My chief judge has no intention of canceling court,” said Molly Dwyer, the clerk of court for the 9th Circuit, noting that oral arguments had been scheduled for weeks to come.
In Manhattan, the Federal District Court for the Southern District of New York has already restricted the hours when initial appearances for criminal defendants can take place, because of staffing constraints with the U.S. Marshals Service.
There are little things that cost money but might not normally get much thought, like providing lunch for jurors when they are deliberating. “I got to find a deli in town that’s going to continue to let us owe them thousands of dollars,” said Edward Friedland, the district executive for the Southern District.
Then there is the issue of keeping the courthouse doors open.
Friedland said it was unclear if contracted building workers who handle areas like fire safety as well as heating, ventilation and air conditioning would be paid beyond February, raising the possibility that the Southern District’s courthouses might not be able to stay open.
That uncertainty has prompted the court to turn to its pandemic plan — which was prepared for a situation in which judges and other court personnel would not be able to leave their homes because of a disease outbreak, but essential work like determining bail for defendants still needed to take place.
“That’s something we never thought we’d be testing for this purpose,” Friedland said.
In Chicago, Castillo worried that there would be longer-term ramifications, such as veteran employees deciding to call it quits, and young people being turned off from pursuing federal jobs.
“It’s very self-defeating,” he said, adding: “It’s like you’re on the front lines and you’re being shot in the back by your own forces. That’s how it feels.”
Given that his court is already understaffed, he said he was not planning furloughs. But he said that civil trials would be “shut down,” and his court would give priority to criminal cases in which defendants are detained awaiting trial and have the presumption of innocence.
Still, for defendants who are not detained, he predicted that defense lawyers would not want to go to trial because of another complication: There would not be any money to pay jurors until after the shutdown.
“The dilemma that creates is then you have jurors who are making big decisions and may be unhappy about the circumstances of their jury service,” Castillo said. “I was a defense attorney. I would not want to proceed to trial under those circumstances because those circumstances can lead to rushed judgments on the part of jurors that just want to get this done and over with. That’s not fair.”
This article originally appeared in The New York Times.