With talk of shutting down the federal government filling the air in Washington, amid the latest partisan tiff over the national budget, the Supreme Court is remaining mum for now about how it might react. But if its past reactions provide a guide, its doors will be open and its functions will continue.
Next Monday, the nine Justices — back from summer wanderings — will assemble as usual in a private session to decide how many new cases they will accept for review, selected out of a huge list that has stacked up over the months of recess. That is just one day before at least a partial interruption of government operations could hit — and apparently will hit, if Congress and President Obama do not find a way to avert it before then.
Then, on October 7, the first Monday of that month, all nine Justices are expected to be on the bench at 10 a.m. to formally open a new Term and begin a two-week public session. As of now, there are no known plans to suspend any of those hearings. Justice Department lawyers are due to appear in some of those cases, and the Court fully expects them to show up. (Indeed, the Office of the Solicitor General, whose attorneys normally appear on behalf of the federal government at the Court, expects to have all of its attorneys at work if there is a shutdown, although it will operate with a limited staff.)
Like every other part of the federal establishment, the Court operates on funds provided by Congress; it has no separate discretionary fund. In the past, it has acknowledged that there might be such a thing as a “lapse in appropriations,” as it put it then, but even in the face of such threats, it remained open and seemed hardly to miss a beat.
Two years ago, the last time such a threat arose, the Court publicly promised to “conduct its normal operations” at least for a time, and it added: “The Court building will be open to the public during its usual hours.”
There were actual shutdowns, of at least part of the government, in the late fall of 1995 and later in that winter, but Supreme Court public information director Kathleen L. Arberg noted recently: “Our files indicate the Court conducted business as usual.”
Here are details that she provided about the government closings that occurred between November 13-19, 1995, and between December 15, 1995, and January 6, 1996:
“The Court sat in a non-argument session on Monday, November 15, 1995, which included orders and bar admissions, but no opinions. The Court released orders in capital cases on November 14 and 15. The Court was not scheduled to sit during the second shutdown but miscellaneous orders were issued on December 20, January, 2, 3, and 4. Conferences were scheduled for January 5, and orders were released that day.”
Although the Court does have awesome powers, it has no authority to print its own money. So, it apparently found some in various accounts to keep paying the bills, or simply did without. Our understanding is that certain governmental functions — like the Court — are exempt from the shutdown.
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