When the federal government shuts down, Americans think of national parks or endless airport security lines. What almost no one thinks about – until it touches their lives – is when the judiciary itself starts running out of money.
This is not an abstract question. Till today, the government is closed. Although the federal courts are still operating, they are operating on a fiscal cushion that will not last.
The judiciary can no longer remain open due to unapproved funds, such as from fees, outstanding balances and deferred payments. This is a short-term hack that buys a few weeks of normalcy.
We’ve seen this playbook before. During the 2018-2019 shutdown, The Administrative Office of the U.S. Courts revised its estimates four separate timesTo delay new hires, travel and contracts, to delay filing fees and to extend operations a few more days. The system worked, but only on borrowed time. Once appropriations came back, the courts were left with a backlog of unpaid bills and a warning: These are stopgaps, not solutions.
The real danger comes when those funds dry up. At that point, the judiciary should work under Anti-Deficiency ActWhich allows only “mission-critical” work. The criminal trial continues, as do proceedings involving protection of liberty and public safety. But civil cases—already burdened with delays—become second-class citizens of the docket.
In 2019, some judges suspended civil cases involving the federal government entirely at the request of the Justice Department, while others refused. That uneven response revealed a deeper problem: When courts are forced into triage, the promise of equal access to the law begins to fracture.
Today’s shutdown risks repeating that history, but on an even larger scale.
Imagine being a small business suing a federal agency, an immigrant awaiting an appeal, or a whistleblower seeking an injunction. If the courts decide you don’t fall under “mission critical,” your case could sit idle for weeks or months. Meanwhile, the deadlines involved in cases don’t just stop themselves; Evidence becomes stale, witnesses become unavailable, and legal windows close. Lawyers will have no choice but to try extraordinary measures – mandamus petitions, emergency motions, even constitutional claims that Article III requires courts to act regardless of politics.
It’s not hard to see how this could spiral into a separation-of-powers problem. On paper, the judiciary is cocratic. In practice, its funds hold Congress hostage every time. This reliance creates a dangerous precedent: If politicians realize that starving the courts of money undermines their independence, what is to prevent future administrations from taking advantage of the appropriations against politically inconvenient regimes? The perception that justice hinges on the budget undermines confidence in the courts.
Even where courts remain technically “open”, the experience of the last shutdown shows how justice can still be miscarriages of justice. Pacer and electronic filing systems keep running, but if clerks and staff are bloated, filing simply becomes unsafe. Judges and defenders report to work, but travel is curtailed, contractors disappear, and even basic building services like security and heating may be pared back by the General Services Administration.
In 2019, some districts worked with the U.S. Marshals and building managers to simply keep the courthouses safe and functional. This is not an image of a Coquel branch – it is a picture of a judiciary torn through dysfunction.
Ironically, it is in moments of political breakdown that the courts are most essential. They are an institution designed to operate above the fray. But shutdowns flip that script. They make the judiciary another casualty of Washington’s dysfunction, when in fact it should be a backstop against it. The longer this shutdown extends, the greater the risk that litigants begin to doubt whether their rights can truly be upheld when budgets, not constitutional guarantees, dictate access.
This doubt is corrosive. Justice delayed is justice denied, and nothing delays justice more than telling plaintiffs their cases are “non-urgent” until Congress decides otherwise.
Even if the courts shut this down, as they have in the past, the cumulative effect of repeated funding crises is a steady erosion of credibility. Each time, more Americans discover that the courts are not a secure lifeline; They have a stopgap.
The solution is not complicated, but it requires political will. If the judiciary is truly co-inclusive, it deserves a funding structure that insulates it from partisan impasse. No one is suggesting a blank check or an unlimited budget. But a mechanism that ensures the courts remain fully operational, even if Congress procrastinates, is overdue. After all, we don’t suspend constitutional rights when Congress can’t pass a bill – why should we suspend the courts that enforce those rights?
For now, judges and clerks are keeping the lights on with accounting gymnastics. But the longer this shutdown continues, the closer we get to a constitutional crisis hiding in plain sight: a judiciary incapable of performing its core functions.
If that happens, it won’t just be the courts who lose. This would be every citizen who thought that access to justice was more than a budget line item.
Aron is Chief Strategy Officer for SolomonIncreaseand has taught entrepreneurship at McGill University and the University of Pennsylvania.
