SCOTUS for law students: Keeping the Supreme Court open

Suppose the federal courts run out of money in the current federal government shutdown? What happens to the Supreme Court?

The answer is that the Supreme Court will continue to perform its essential functions, including processing petitions, hearing oral arguments and deciding cases. But exactly how that will happen remains a work in progress.

The federal court system, including the Supreme Court, depends for its financing on the same budget and appropriations process as other parts of the federal government. Through the Administrative Office of the U.S. Courts, the entire federal judicial system submits an annual budget request that funds myriad functions from construction of new court buildings to repairs of existing facilities to salaries for federal defenders, judges, court staff and security personnel, to paying juror fees and more. The budget request for the current Fiscal Year 2019 was prepared in February 2018.

The Constitution says in Article I, Section 9, that any money to be spent from the U.S. Treasury must be the result of an appropriation by Congress. In the absence of such appropriations, a shutdown is triggered. When Congress and President Donald Trump failed to agree on legislation to fund numerous federal agencies, the judicial budget was among those left on the table, leading to the current crisis.

The federal court system has continued to operate by imposing some cost-cutting measures and by relying on non-appropriations revenue raised through fees that litigants pay to file their cases in federal courts. Typically, to file a civil lawsuit in federal district court, a litigant must pay a $400 filing fee. To appeal to a federal appeals court, the docketing charge is $500. To file a petition in the Supreme Court, a petitioner must pay a $300 fee. These fees may be waived for those who cannot afford to pay them.

The Administrative Office, which supports the work of the federal courts and is also funded from the judiciary budget, has put out a series of advisory statements estimating how long the federal courts can sustain operations with no appropriation and just based on court fees and cost-cutting. Earlier this week, the Administrative Office said the funds would run out after next Thursday, January 31.

What does that mean for the federal courts? For the Supreme Court? Like many legal questions, the answer is complicated.

What happens in a government shutdown is governed to some degree by a federal law, the Anti-Deficiency Act. This law has its roots in the late 19th century and has been revised numerous times since the early 1900s. Essentially the Anti-Deficiency Act says the federal government cannot spend money that has not yet been appropriated. It also says the federal government generally cannot have workers volunteering their time. There are exceptions to the Anti-Deficiency Act. Specifically, the law says that workers may volunteer or continue employment if necessary for “emergencies involving the safety of human life or the protection of property.”

The answer as to what happens to the Supreme Court lies in two sources: the Constitution and the interpretation of the exceptions to the Anti-Deficiency Act.

Because the authority of the Supreme Court is derived from Article III of the Constitution, the core functions of the justices are considered to be essential and necessary to be performed with or without a current appropriation. The same holds true for federal district and appeals courts. Moreover, various interpretations of the Anti-Deficiency Act over a number of years by the Justice Department and Office of Management and Budget have effectively created a category of “excepted” employees who are deemed not to be covered by the requirement that they not work during a shutdown.

In a statement issued in January 2018, the Administrative Office explained its position that if funds run out and no appropriation has been approved, “the Judiciary would then operate under the terms of the Anti-Deficiency Act, which allows work to continue during a lapse in appropriations if it is necessary to support the exercise of Article III judicial powers.”

All of this interpretation means several things as a practical matter.

First, the Supreme Court and the lower federal courts must be able to continue to perform their core function of deciding cases. For the Supreme Court, that means continuing to receive petitions for certiorari and vote on which of them to grant or deny. It also means continuing to hear oral arguments, although none are scheduled until February 19, when the court concludes its current recess. And it means deciding the argued cases, although again, no new opinions are likely until after the recess.

Second, the Constitution adds another twist to this process. Because Article III says that the salary of Supreme Court justices cannot be reduced, the justices must continue to be paid for their work during this period. The same holds true for federal appeals court and federal district court judges.

Third, when the money runs out next week, and if there is still no appropriation, court staff will be split into two groups. Employees whose work is essential to the core mission of the Supreme Court will have to continue working, presumably with the expectation that they will receive back pay when an appropriation eventually comes through. But other workers who may not be essential to those core functions will have to be furloughed.

At the Supreme Court, this dichotomy among staff might mean that a substantial number of court employees will continue to work to keep the building open, provide security, facilitate court sessions for oral arguments and announcement of decisions, and process petitions, briefs and emergency applications. Some other functions could be shut down, however, such as courtroom lectures provided to tourists.

At the Supreme Court, presumably the justices would consider their law clerks to be essential to the court’s functions, because the clerks play an integral role in screening cases and drafting opinions. But in some lower courts, for cost-saving purposes, judges have begun rotating law clerks with days working and days off.

For the other federal courts, the Administrative Office has said that each court will have to decide which staff are essential to perform the core functions required by Article III and furlough everyone else.

A Congressional Research Service report in December 2018 summed up the outlook for the judiciary in this way: “Consequently, 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. Each court would be responsible for determining the number of court staff and officers needed to support the exercise of its Article III judicial powers.”

Whether these steps will be necessary depends, of course, on whether Congress and the president reach any agreement on appropriations legislation. But at present, leaner times are looming for the Supreme Court.