When the federal government shuts down, Americans think of shuttered national parks or endless airport security lines. What almost no one thinks about — until it touches their own life — is what happens when the judiciary itself starts to run out of money.
That is not an abstract question. As of today, the government remains closed. Although the federal courts are still functioning, they are running on a fiscal cushion that will not last.
The judiciary can stay open for now because of non-appropriated funds, such as from filing fees, leftover balances and deferred payments. It 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 different times, juggling filing fees and delaying new hires, travel and contracts just to extend operations a few more days. The system worked, but only on borrowed time. Once appropriations returned, courts were left with a backlog of unpaid bills and a warning: these are stopgaps, not solutions.
The real danger comes when those funds run dry. At that point, the judiciary must operate under the Anti-Deficiency Act, which permits only “mission-critical” work. Criminal trials continue, as do proceedings tied to 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 altogether at the request of the Department of Justice, whereas others refused. That uneven response revealed a deeper problem: when courts are forced into triage, the law’s promise of equal access starts 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 waiting for an appeal, or a whistleblower seeking an injunction. If courts decide you don’t fall under “mission critical,” your case could sit idle for weeks or months. Meanwhile, the deadlines involved in the cases don’t just pause themselves; evidence grows stale, witnesses become unavailable, and statutory windows close. Lawyers will have no choice but to test extraordinary measures — mandamus petitions, emergency motions, even constitutional claims that Article III requires courts to keep functioning regardless of politics.
It is not hard to see how this could spiral into a separation-of-powers problem. On paper, the judiciary is coequal. In practice, its funding is held hostage every time Congress deadlocks. That dependence creates a dangerous precedent: If politicians realize that starving the courts of money weakens their independence, what’s to stop a future administration from leveraging appropriations against politically inconvenient rulings? The mere perception that justice hinges on budget brinkmanship undermines confidence in the courts.
Even where courts remain technically “open,” the experience of the last shutdown shows how justice can still be degraded. PACER and electronic filing systems keep running, but if clerks and staff are furloughed, filings just pile up unprocessed. Judges and defenders report to work, but travel is curtailed, contractors vanish, and even basic building services like security and heating can be pared back by the General Services Administration.
In 2019, some districts worked with U.S. Marshals and building managers just to keep courthouses safe and functional. That isn’t the image of a coequal branch — it’s a picture of a judiciary limping through dysfunction.
The irony is that courts are most essential at moments of political breakdown. They are the one institution designed to operate above the fray. But shutdowns flip that script. They make the judiciary appear just another casualty of Washington dysfunction, when in reality it should be the backstop against it. The longer this shutdown drags on, the greater the risk that litigants begin to doubt whether their rights can truly be vindicated when budgets, not constitutional guarantees, dictate access.
That doubt is corrosive. Justice delayed is justice denied, and nothing delays justice more thoroughly than telling plaintiffs their cases are “non-essential” until Congress decides otherwise.
Even if the courts weather this shutdown as they have in the past, the cumulative effect of repeated funding crises is a steady erosion of credibility. Each time, more Americans learn that the courts don’t have a secure lifeline; they have a stopgap.
The solution is not complicated, but it requires political will. If the judiciary is truly coequal, it deserves a funding structure that insulates it from partisan standoffs. No one is suggesting blank checks or unlimited budgets. But a mechanism that ensures courts remain fully operational regardless of congressional dysfunction 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 come to a constitutional crisis hiding in plain sight: a judiciary unable to perform its basic function.
If that happens, it won’t just be the courts that lose. It will be every citizen who thought access to justice was more than a budget line item.
Aron Solomon is chief strategy officer for AMPLIFY and has taught entrepreneurship at McGill University and the University of Pennsylvania.
