Congress’ failure to approve a budget has led to the partial shutdown of a range of government services, including national parks, the funding for some food services, and even certain WWII cemeteries in Europe. More than 800,000 non-essential federal employees are also being told to stay home. Coinciding with the shutdown is the first full week of the new session of the Supreme Court. Will the Court be affected by the shutdown?
The justice system is generally seen to be essential and so exempt from shutdown.
The new Supreme Court term began today when justices took to the bench around ten o’clock and Chief Justice John Roberts delivered a formal opening, skipping over any references to the shutdown. The Court has announced, however, that it will operate as normal for at least this first week, and is now hearing six different arguments on a range of topics. Hundreds of appeals were also turned away on the first day of hearings.
The Antideficiency Act allows the government to continue with all essential services during a shutdown, such as air traffic control, social security, military spending, and food stamps. The justice system is generally seen to be essential and so exempt from shutdown – a stance backed up by the Sixth Amendment’s requirement that a “speedy and public trial” be granted to defendants. Federal courts and the Supreme Court should therefore remain active, though the effects of any long-term shutdown on smaller courts are hard to predict. Although the first week of the new term has been guaranteed, civil litigation may be suspended if the shutdown continues beyond ten business days, and public defenders’ pay may not be guaranteed after that date. Districts’ chief judges could find themselves having to decide which services are ‘essential’ and which staff to place on furlough or unpaid leave. Wages for staff and jurors alike, if it’s not paid at the time, would be paid retroactively once the shutdown is lifted.
So, the short answer is that the Supreme Court should not be immediately affected by the shutdown, and any class action cases that make their way there should be heard in due time. The unpredictability of any long-term shutdown, however, has made a lot of people nervous, and the impact on class action lawsuits in lower courts may be far more severe if Congress cannot agree a deal within another week.