How the Shutdown Will Affect the Federal Courts

The government shutdown that began on Monday will have substantial effects on our country's justice system that will escalate over time. For the most part, the basic functions of the federal judiciary will continue during the Republican crusade against affordable health insurance.

The Antideficiency Act permits the government's "essential services" to be funded during a shutdown. The Supreme Court, which accepted eight new cases this week, will remain open barring unforeseen circumstances. Since criminal justice is generally considered an essential service, circuit and district courts will remain open and continue to hear criminal cases as well. (The Sixth Amendment's requirement that defendants be given a "speedy and public trial" would mean serious potential problems should the prosecution of criminal cases be suspended for any significant length of time.)

So federal judges will generally maintain employment, and courthouse doors will remain open. With respect to other basic judicial functions, the situation is somewhat more complicated, particularly should the shutdown not end this week. After ten business days, there could be a real impact on the functions of the federal judiciary.

While criminal-justices cases will be considered "essential" and will proceed, most civil litigation is likely to be suspended should the shutdown persist. Public defenders, already hit hard by the sequester caused by the last bout of Republican gone awry, may be required to work without pay and be compensated later.

As with most of the shutdown, however, the biggest effect will be on ordinary workers:

Once those funds [available to keep the courts running for 10 days] are exhausted, employees deemed non-essential would be furloughed without pay. Those considered essential would continue to work without pay, though they would be entitled to retroactive money after the government resumes business. Jurors would also be forced to wait until after the shutdown ends for payment.

The chief judge in each district would have broad latitude to determine which services and staff members were "essential" and which could be put on hold for the duration of the shutdown.

The workers least likely to be able to afford it, in other words, are going to be facing a period of unemployment should the shutdown continue. While this number might not be huge in itself, when combined with similar actions taken by other parts of the federal government the impact on many individuals and their communities grows substantially. A lot of working people are going to needlessly suffer because of the Republican temper tantrum enabled by our dysfunctional political system.

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