Just in time for Halloween, the federal government is running a skeleton crew — and courthouses are no exception. We’re talking about the government shutdown, of course. How did we get here, and what does it mean for the justice system? FindLaw breaks it down.
Shut Down for What?!
The short end of it is this: the current shutdown is the product of a protracted standoff between congressional Democrats and Republicans, which reached a breaking point at the end of last month.
The immediate cause was the failure to pass a continuing resolution to fund the government. Senate Democrats refused to advance a Republican-backed bill that would have eliminated Obamacare subsidies, resulting in a lapse in appropriations and triggering a government-wide shutdown on October 1. Executive branch agencies began furloughing workers and suspending services immediately.
The federal judiciary was able to maintain paid operations for several weeks by relying on reserve funds, court fees, and leftover balances from previous years. However, these stopgap measures were always temporary, and by October 17, the Administrative Office of the U.S. Courts announced that funding would be exhausted by Monday, October 20.
Judiciary Hits the Wall
The shutdown isn’t breaking news, so why is it newsworthy now? Well, for the first few weeks of the month, the federal judiciary was mostly spared the fate of other government branches thanks to legal fees. The fees are collected from litigants and defendants who use the courts. They help to pay court costs, but they only cover part of the courts’ expenses (the remainder comes from government appropriations). And they can only go so far.
After 20 days of shutdown, an estimated 750,000 federal employees have been furloughed nationally, with another 33,000 federal court staff either performing limited tasks unpaid or placed on furlough. The impasse, driven by heated disagreement over medical care subsidies, has resulted in daily economic losses estimated by some economists at $15 billion. The Administrative Office of the U.S. Courts reinforced on Friday that, “until the ongoing lapse in government funding is resolved, federal courts will maintain limited operations necessary to perform the judiciary’s constitutional functions.”
As the shutdown drags on, its effects on courts across the country are becoming increasingly severe. Federal courts (including appellate, district, and bankruptcy courts) are now forced to curtail non-essential functions and begin furloughing staff – for the first time since the mid-90s. That’s not great news on its own, but there’s an even bigger problem when you consider the governing law of the country.
Balancing Legal Mandates
Under the U.S. Constitution, judges of courts established under Article III (such as the Supreme Court, Courts of Appeals, and District Courts) are guaranteed life tenure and their salaries cannot be diminished while in office. This ensures judicial independence and continuity even when the government faces funding shortfalls. Therefore, judges must continue fulfilling their constitutional duties (hearing cases, issuing rulings, and maintaining essential judicial proceedings) regardless of whether Congress has passed a funding bill.
But there’s also another snag: the Anti-Deficiency Act. This law prohibits federal agencies and employees from obligating or spending government funds without congressional appropriations. It allows only narrowly defined "excepted activities" to continue during a shutdown.
So, how is Uncle Sam planning on reconciling these seemingly opposing laws?
Courts in Survival Mode
Put simply, the judiciary limped along as long as it could by relying on court fees — money paid by litigants to file cases, access court records, and so on — but those funds are only a stopgap. Once exhausted, the courts face the same constraints as the rest of government and have to sharply limit their operations to what’s required by the Constitution and core legal mandates. Against the backdrop of mounting partisan finger-pointing in Washington, this situation is exposing both structural vulnerabilities and the real-world consequences of a budget impasse on the justice system.
It looks like judges will continue to serve as required by the Constitution, but most court employees will only be permitted to perform "excepted activities" under the Anti-Deficiency Act. In the judiciary’s case, “excepted activities” include functions required by the Constitution (adjudicating cases and issuing judicial orders), but also work necessary for the “safety of human life or the protection of property,” and “activities otherwise authorized by law.”
That’s not very clear, is it? Here are examples of the kinds of activities that fall into these exceptions and will therefore remain ongoing: security operations; emergency detention hearings; maintaining critical infrastructure like electronic filing systems; essential criminal proceedings or urgent court filings that cannot be postponed without violating rights.
In short, while judges remain constitutionally obligated to serve, the broader judiciary shifts into “survival mode,” sustaining only the most crucial operations under strict legal limits. Most court employees (clerks, administrative staff, researchers, probation officers, and others) cannot work during a shutdown unless their tasks fall into one of those excepted categories. Those who do continue working must do so without pay until Congress restores funding. All other staff are being placed on furlough.
A ‘Funding Crisis’
Senate Judiciary Committee leaders warn that lapses in funding could soon mean “justice delayed—or even justice denied.” The shutdown's impact extends beyond just court staff: federal public defenders, who represent indigent criminal defendants, will not be paid during this period, nor will private lawyers appointed under the Criminal Justice Act.
In fact, payments for private lawyers have already been delayed since July due to earlier budget shortfalls—a situation the judiciary has deemed a "funding crisis." Probation officers, judicial clerks, and administrative staff still working are set to receive their last paychecks on October 24 if appropriations do not resume.
The Justice Department has argued in filings that it cannot keep up with hundreds of lawsuits with reduced staff and resources. While that very well may be true, note that only about 11 percent of its workforce has been furloughed, compared with over 80 percent at agencies like Commerce.
Every Court for Itself?
Each individual court is responsible for determining how it will operate during this funding lapse. Unsurprisingly, this has led to a patchwork of responses nationwide.
Some courts have pledged to keep scheduled trials and grand jury sessions running for as long as possible using remaining funds. For example, Chief Judge Virginia M. Kendall of the Northern District of Illinois warned that delays in timely justice are inevitable but assured that enough funding remains for now to continue critical proceedings. At the Supreme Court, the justices plan to keep hearing cases and issuing rulings while the building remains closed to the public. On Monday, the Court announced they will review a high-profile gun law case but that might just be because the Trump Administration urged them to take it up.
Despite all the operational constraints, litigation against the Trump administration continues apace. Judges overseeing lawsuits challenging administration policies have repeatedly denied government requests to suspend cases due to lack of resources. Some deadlines have, of course, been extended, and less urgent matters have been put on hold. But still, many high-profile cases (including those related to immigration enforcement and deployment of federal forces) are proceeding with only minimal interruption.
Trials and Tribulations Ahead
Looking ahead, lawyers and litigants should brace for significant uncertainty and delays. President Trump and House Republicans show no signs of conceding, blaming Democrats for obstructing federal courts and critical services.
With individual courts making their own operational decisions based on available staffing and resources, parties may find scheduled hearings postponed or rescheduled at short notice. Civil litigation involving federal agencies is particularly affected due to widespread furloughs among agency employees who serve as witnesses or provide necessary documentation.
Ultimately, while judges remain constitutionally obligated to serve, the judiciary is now fulfilling only its core functions and under strict legal restraints.
Related Resources:
- How a Federal Government Shutdown May Affect You (FindLaw’s Law and Daily Life)
- Will SCOTUS Overturn a 90-Year-Old Precedent in Allowing the Termination of a Federal Agency Head? (FindLaw’s Federal Courts)
- Half of the States Sue Federal Government for Blocking Immigrant Victims’ Access to Justice (FindLaw’s Federal Courts)
