The Gavel: Shutdown threatens court operations

The Hill's weekly courts news digest.

By Ella Lee and Zach Schonfeld   |   Wednesday, October 1 By Zach Schonfeld and Ella Lee Wednesday, October 1 © Getty Shutdown threatens court operations The government is shut down — and if it drags on, the judiciary won't be spared.  Federal courts may be forced to limit their operations as soon as next week after funding lapsed at midnight.  The shutdown could eventually implicate court dockets across the country, delaying trials and other hearings as courts' coffers run dry.   Today at least, all judiciary employees will report to work, Administrative Office of the U.S. Courts spokesperson Peter Kaplan told The Gavel, saying court fees and other balances would maintain judiciary operations through Friday.   "We will continue to assess available fees and balances after FY 2025 closes to determine if operations can be sustained beyond that date," Kaplan said.  If courts run out of cash before Congress passes new funding, the judiciary would follow the terms of the Anti-Deficiency Act, a law that bars obligating or spending more money than lawmakers appropriated, Kaplan said.   "Federal courts would continue operating but would be limited to activities needed to support the exercise of the Judiciary's constitutional functions and to address emergency circumstances," he told us.  The government shut down Wednesday after Republicans' seven-week stopgap proposal failed to advance in the Senate, where more than half a dozen Democrats would need to sign on to clear the chamber's 60-vote threshold.   Beyond extending funding through Nov. 21, the proposal would also boost security funding for Supreme Court justices while leaving unaddressed requested increases for lower judges' security.  The likelihood of a shutdown ramped up over the past week and increased further on Monday after congressional Democratic leaders met with President Trump at the White House on Monday and no breakthrough was made.  Democrats dug in on the issue of health care and extending enhanced subsidies passed in 2021 for Affordable Care Act plans. GOP leaders have said the issue of the tax credits, which expire at the end of this year, should be handled separately from the stopgap.  At the Justice Department, the shutdown plan exempts 89 percent of employees from furlough for the first five days. The department attributes the high percentage to its missions protecting the safety of human life and property and how some employees' salaries are funded by multiyear appropriations.  Criminal prosecutions "will continue without interruption," but civil litigation will be curtailed when possible.  "Litigators will approach the courts and request that active cases, except for those in which a delay would compromise to a significant degree the safety of human life or the protection of property, be postponed until funding is available," the plan states.  Ultimately, judges will need to sign off on halting any pending cases. And if a judge refuses, the Justice Department will consider that as authorization to continue amid the shutdown.  The administration has already signaled they'll ask judges to move ahead in high-profile challenges to Trump's second-term agenda.   The left-leaning legal group Democracy Forward said in a press release last week that judges — who will continue to work throughout the government's shuttering — have discretion to grant or deny the requests.  "It is imperative that the most pressing litigation currently happening continues to move forward, regardless of a potential government shutdown," said Democracy Forward President and CEO Skye Perryman.   Meanwhile, immigration cases on the docket should still proceed, while others will likely be rescheduled for after funding resumes, according to Rep. Greg Stanton (D-Ariz.).  The shutdown has also spurred concerns about safety, given many judges have security details amid rising threats. Those safety measures will remain in place.  A U.S. Marshals Service spokesperson told Fix the Court's Gabe Roth that all law enforcement members are excepted from shutdowns and must work "no matter what."  "The vast majority of admin will be furloughed, but no deputies will be," the spokesperson said, according to Roth. "All details, operations and routine services we may do will continue to be done by the deputies."  The Gavel requested comment from the agency about the matter.   Over at the Supreme Court, the shutdown presents fewer problems.   While Congress created lower courts, the Supreme Court was established by the Constitution.   Supreme Court spokesperson Patricia McCabe told us that, in the event of a lapse in appropriations, the high court will keep conducting its "normal operations."  "The Court will rely on permanent funds not subject to annual approval, as it has in the past, to maintain operations through the duration of short-term lapses of annual appropriations," she said.   As the courts' funds dwindle, it's possible some judiciary employees could be furloughed, and they'd get back pay when the shutdown is over.   But both judges and Supreme Court justices will continue to be paid, as the Constitution requires.   According to Article III, Section 1: "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office."  That includes a shutdown.    Welcome to The Gavel, The Hill's weekly courts newsletter from Ella Lee and Zach Schonfeld. Click above to email us tips, or reach out to us on X (@ByEllaLee, @ZachASchonfeld) or Signal (elee.03, zachschonfeld.48).   Not already on the list? Subscribe here. IN FOCUS Mini-trial over Texas redistricting kicks off Two weeks. Three judges. A mini-trial over Texas's redrawn congressional map.  Voting rights groups, individuals and two Texas Democrats in Congress are heading to an El Paso courtroom Wednesday hoping to strike down the design for allegedly unconstitutional racial gerrymandering.  It marks a high-stakes test for Texas Republicans, who at President Trump's urging are attempting to add five more Republican seats to bolster the party's chances of keeping control of the House in next year's midterms.  Texas's mid-decade redrawing has sparked a new chapter in the battles over congressional redistricting. This weekend, Missouri's governor signed a new map that sets up the GOP to gain an additional seat, and blue states like California are looking to make countermoves.  In court, Texas has blamed Democrats for starting a "political arms race," casting Texas's effort as merely a proportional response to maps in states like Illinois, which are tilted toward Democrats.  "Their Republican-led corollaries are fed up with these games and now plan to fight fire with fire," Texas wrote in court filings.  Federal law requires challenges to the constitutionality of a congressional map design be heard by a three-judge panel.  The battle in Texas will be considered by U.S. District Judge David Guaderrama, nominated by former President Obama; U.S. Circuit Judge Jerry Smith, nominated by former President Reagan; and U.S. District Judge Jeff Brown, nominated by Trump.  With just weeks until candidates can start filing for the primary, the judges are moving full steam ahead, foregoing opening statements and hearing from witnesses beginning Wednesday.   Testimony is set to last up to around two weeks, and the judges have even floated holding court this Saturday to stay on schedule.  The judges will hear from more than 20 people in all, court records show, including state lawmakers, political scientists and the executive director of the National Republican Redistricting Trust.   Whichever side loses can appeal the judges' decision directly to the Supreme Court.  Texas's map is being challenged by four different groups of plaintiffs:  Individual voters: A group of individual voters known as the "Gonzales plaintiffs," a reference to lead plaintiff Cecilia Gonzales. They are represented by Elias Law Group, the firm led by Democratic elections lawyer Marc Elias.  Two Texas Democrats: Reps. Jasmine Crockett and Al Green, both Democrats who represent portions of Texas, have intervened.  Latino groups and more voters: The League of United Latin American Citizens, the Mexican American Legislative Caucus and another group of voters are suing.  NAACP: The Texas State Conference of the NAACP has also joined.  The four groups raise various arguments and challenge overlapping sets of districts. Here's the (dizzying) chart laying it all out.  The case revolves around four major areas of Texas: Houston, Dallas–Fort Worth, the I-35 corridor and the Gulf Coast.  Federal courts cannot strike down maps as partisan gerrymanders following the Supreme Court's 2019 decision in Rucho v. Common Cause. The plaintiffs' challenge concerns race.  They claim Texas illegally designed the new map not for politics, but to weaken the power of Black and Hispanic voters by dismantling and consolidating majority-minority districts.   "Texas's explicit, intentional manipulation of district lines to suppress minority voting strength provides an open-and-shut case to strike down the congressional map," one group wrote.  The plaintiffs point to a July 7 letter from the Justice Department that threatened a lawsuit against Texas if it did not make changes to four majority-minority congressional districts: TX-9, TX-18, TX-29 and TX-33.  "The Congressional Districts at issue are nothing more than vestiges of an unconstitutional racially based gerrymandering past, which must be abandoned, and must now be corrected by Texas," Harmeet Dhillon, the assistant attorney general for civil rights, wrote in the letter.  Dhillon's letter zeroed in on "coalition districts," meaning ones drawn after multiple minority groups combine to bring a redistricting lawsuit under Section 2 of the Voting Rights Act. The 5th U.S. Circuit Court of Appeals, which covers Texas, ruled those lawsuits unconstitutional last year.  The plaintiffs acknowledge it bans the creation of new coalition districts, but they contend it does not license the "intentional, race-motivated destruction" of existing ones.  As the panel weighs those arguments at the hearing, keep in mind: The Supreme Court in exactly two weeks will hear arguments in Louisiana v. Callais, the battle over Louisiana's congressional map that raises broader questions about the future of Section 2 and majority-minority districts.  Roberts hits 20th year on high court in fraught moment As Chief Justice John Roberts marked two decades on the Supreme Court on Monday, he's caught in a frenetic balancing act.   Trump's quest to broaden executive power has brought scores of challenges to the high court that stand to upend longtime precedent and embolden the White House.  Meanwhile, lower court judges are grappling with novel legal questions and mounting attacks, raising the stakes with often little guidance from the Supreme Court justices.   It has forced Roberts to play referee over the judiciary's tug-of-war with the Trump administration — a role that tests his desire to preserve the high court's sanctity.   Despite the chief justice's goal to keep the court out of the political fray, public trust in the court has fallen sharply.  Just half of surveyed Americans have a favorable view of the Supreme Court, according to a recent Pew Research Center survey, 22 percentage points lower than just five years ago.  The drop is particularly pronounced among Democrats, just 26 percent of whom have a favorable view.  "My question for the court would be, when do you zoom out and when do you take stock of everything you're doing all at once?" New York University law professor Daniel Harawa said at a legal event Thursday.   "It seems to me to be fundamentally inconsistent to just call balls and strikes but also to be an institutionalist," he continued, "because to think of an institution means you have to be thinking of the bigger picture."  Since returning to the White House, the Trump administration has scored at least partial victories in all but two of its 25 emergency applications decided by the Supreme Court so far — from greenlighting third-country removals and independent agency firings to allowing billions of dollars in diversity grants and foreign aid funds to be slashed or kept frozen.  It's raised the specter of a Trump bias on the Supreme Court, even among some of the justices.   After the court allowed Trump to cancel hundreds of millions of dollars in National Institutes of Health (NIH) grants linked to diversity initiatives, Justice Ketanji Brown Jackson accused her colleagues of engaging in "Calvinball jurisprudence with a twist."  "Calvinball has only one rule: There are no fixed rules," she wrote. "We seem to have two: that one, and this Administration always wins."  It's also caused confusion among lower court judges, putting them in conflict with the Supreme Court justices.   Emergency decisions often come with little to no explanation from the justices, leaving the judges below them to guess their reasoning or the best path forward.   That tension came to a head after the same NIH decision. Justice Neil Gorsuch, in a separate opinion joined by Justice Brett Kavanaugh, accused the district judge who blocked the cuts of seeking to "defy" the Supreme Court's earlier emergency ruling in another grant cancellation case.   The Reagan-appointed district judge, William Young, issued an apology from the bench. Then, retired Justice Stephen Breyer gave a rare interview to The New York Times rejecting the notion that Young, whose rulings he reviewed as an appeals judge for years, would ever "deliberately defy" the justices.   Roberts remained mum about the exchange. But he did speak out earlier this year when Trump went after the chief judge of D.C.'s district court.   Trump called for U.S. District Judge James Boasberg, an appointee of former President Obama, to be impeached after he blocked the administration's efforts to invoke the Alien Enemies Act to swiftly deport Venezuelan migrants they had labeled as gang members.  Roberts issued a stern rebuke. He said that for "more than two centuries," impeachment has not been seen as an appropriate response to disagreements over judicial decisions, pointing to the normal appellate review process as the answer.  The dueling scenarios point to a "complicated dynamic," wherein different data points in different places muddle Roberts's public image, said Justin Driver, a Yale Law School professor.  "I think that the Chief Justice of the United States takes his role very seriously in being the leader of Article III," he said alongside Harawa at Thursday's inaugural SCOTUSBlog Summit: On The Merits at Johns Hopkins University Bloomberg Center.  Driver added that Roberts could be doing his own behind-the-scenes maneuvering to protect the court, unbeknownst to the public.   He posited that the court may have saved its decision on the merits of Trump's birthright citizenship order for another day to give the president a small victory — curtailing nationwide injunctions, a practice several of the court's justices have criticized — to soften the blow of a loss down the road.   It speaks to the fraught moment Roberts navigates as the head of the court, he said.  "That the Supreme Court of the United States is having to do this, sort of, potentially, three-dimensional chess in order to make sure that its legitimacy remains intact is a testament to what a strange world we're living in right now," Driver said.   Roberts is now the fourth longest-serving chief justice in American history. At 70, he is still younger than three of his colleagues.  Asked about retirement at an event in May, Roberts joked, "I'm going out feet first."  "I say that now," he told the crowd in Buffalo, N.Y. "I mean, I'm sure if your health declines, and if you recognize that you're a burden to the court rather than part of an assist to everybody, then it'll be time to go."  A judge's screed to Trump and an anonymous threat U.S. District Judge William Young, the Massachusetts-based Reagan appointee mentioned above, is back in the spotlight — this time for a blistering ruling over Trump's crackdown on pro-Palestinian campus activists.  The judge found the Trump administration adopted an unlawful policy to revoke the visas and green cards of noncitizens critical of Israel's war in Gaza with the aim of chilling their protected speech. The decision follows a roughly two-week bench trial over the controversial arrests — the first major trial of Trump's second administration.   But the 161-page ruling went further than that.  At points, Young singled out Trump's "nature," describing him as a bully with "hollow bragging"; quoted his own wife's view of the president; and even appeared to respond to an anonymous threat sent to his chambers, putting the note at the top of his ruling.  Scrawled on the ruling's header is the anonymous note that read, "Trump has pardons and tanks... what do you have?"  It's one of the many threats that federal judges who've handled Trump cases have received in recent months. In U.S. Marshals Service data updated Tuesday, the service said it has investigated 562 threats against federal judges over the past year.  The judge used his opening and closing remarks to respond.  "Dear Mr. or Ms. Anonymous," Young addressed the individual in his ruling. "Alone, I have nothing but my sense of duty. Together, We the People of the United States — you and me — have our magnificent Constitution. Here's how that works out in a specific case —"  That's when the ruling began.   Young said Homeland Security Secretary Kristi Noem and Secretary of State Marco Rubio worked in concert alongside their subordinates to "misuse" their respective offices' powers to target pro-Palestine noncitizens for deportation "primarily on account of their First Amendment protected political speech."   The judge spent several pages dissecting Trump, from his "bully"-like refusal to accept "dissent or disagreement" to his "retribution" against law firms, higher education and the media.  He even quoted his own wife to say Trump "seems to be winning. He ignores everything and keeps bullying ahead." He annotated the remark across several pages.    Young ended the decision in the same typeface as it started, telling the anonymous individual that he hoped his ruling was helpful and thanking them for writing because it "shows you care" and "you should."  "P.S.," the judge added. "The next time you're in Boston [the postmark on the card is from the Philadelphia area] stop in at the Courthouse and watch your fellow citizens, sitting as jurors, reach out for justice."   "It is here, and in courthouses just like this one, both state and federal, spread throughout our land that our Constitution is most vibrantly alive, for it is well said that 'Where a jury sits, there burns the lamp of liberty,'" the judge wrote.  Young's decision came just hours before two graduate students at the center of the national reckoning faced a more immediate and personal battle.  Rümeysa Öztürk and Mohsen Mahdawi, separately detained as part of the crackdown, pleaded Tuesday with an appeals panel to let them remain free in the country as their individual immigration cases play out.  Neither Öztürk nor Mahdawi are plaintiffs in the case Young oversaw. But lawyers for several university organizations that sued the administration over its "ideological deportation policy" said the students' experiences proved their claim that the administration has unlawfully singled out campus activists critical of the war.  SIDEBAR 5 top docket updates Comey indicted: A federal grand jury indicted former FBI Director James Comey on Thursday for allegedly making false statements to the Senate Judiciary Committee when testifying in 2020. He is set to be arraigned Oct. 9.  Birthright citizenship back at SCOTUS: The Trump administration on Friday asked the Supreme Court to uphold the president's restrictions on birthright citizenship as constitutional, the second time the battle has reached the high court.  Foreign aid frozen: The Supreme Court on Friday lifted an order requiring the Trump administration to spend roughly $4 billion in appropriated foreign aid before the fiscal year expired this week. The three liberal justices dissented.  Oregon sues over National Guard deployment: Trump's federalization of National Guard troops in Portland was met with a lawsuit Sunday filed jointly by the city and Oregon.  Disaster funding freeze blocked: A federal judge blocked the Trump administration from conditioning disaster and security funds for states on their immigration policies. In other news The gospel according to Justice Thomas: At a rare public event Thursday at Catholic University, Justice Clarence Thomas remarked that settled precedent should not be seen as "the gospel." He suggested that some previous justices may have thoughtlessly followed prior judgments, analogizing the situation with never checking to see who's driving a train. If you did, you might "find it's an orangutan driving the train."  Tomorrow's a new day: Lindsey Halligan, the new U.S. attorney for the Eastern District of Virginia, had a rough start in her new position, The New York Times reported. The day her office charged Comey, she went into the wrong courtroom, stood on the wrong side of the judge and appeared confused about the paperwork she signed, despite ultimately securing the indictment. It marked her first-ever appearance in a criminal case.  President QAnon Shaman: Jacob Chansley, the Jan. 6 defendant better known as the QAnon Shaman, who entered the Capitol in a furry horned headdress, claims in a $40 trillion lawsuit against Trump, Elon Musk, T-Mobile, Warner Bros. and others that he is the "true" president. PETITION PILE Petitions to take up cases that the justices are keeping a close eye on. The justices met Monday for their "long conference," where they considered the petitions to take up cases that piled up over the summer.  This is our final week of previewing the highlights among the roughly 920 petitions scheduled for the justices' review.  The Supreme Court will release an order list the first day of its new term — Monday — at 9:30 a.m. EDT.   In years past, the court has released the cases being granted a few days ahead of Monday's list. Ghislaine Maxwell: Ghislaine Maxwell, the longtime associate of Jeffrey Epstein, is appealing her 2021 sex-trafficking conviction. She argues it violates a nonprosecution agreement Epstein signed with federal prosecutors in 2007.  The Trump administration is urging the Supreme Court to let the conviction stand, and the appeal comes amid pressure on the administration to release more files related to Epstein. The case is Maxwell v. United States.  Moot Biden policy challenge: Texas doctors want the Supreme Court to wipe an unfavorable lower court decision in their lawsuit challenging a Biden-era health care policy. The policy prohibited providers that receive federal funding from discriminating on the basis of gender identity. An appeals court ruled the doctors had no legal standing to pursue the lawsuit, but Trump retook the White House and rescinded the policy before the doctors could appeal. Everyone agrees the lawsuit is now moot. As the doctors ask the justices to wipe the lower ruling so it doesn't hold the weight of precedent in the future, the Justice Department says the ruling should stand. The case is Neese v. Kennedy. ON THE DOCKET Don't be surprised if additional hearings are scheduled throughout the week. But here's what we're watching for now: Today Three federal judges in Texas are set to kick off two-week preliminary injunction hearing over whether the state can use its new congressional map in the 2026 election.  Thursday The Trump administration is due to respond in writing to Oregon's request to block Trump's National Guard deployment to Portland, Ore.  Friday The person accused of attempting to assassinate Supreme Court Justice Brett Kavanaugh at his home in 2022 is set to be sentenced in federal court in Maryland.  Sean "Diddy" Combs is set to be sentenced on two counts of transporting individuals for prostitution.  A federal judge in Portland is set to hold a temporary restraining order hearing over Trump's National Guard deployment to the city.   Monday The Supreme Court's new term is set to begin with two oral arguments:  In Villareal v. Texas, the justices will hear arguments over whether criminal defendants have the constitutional right to discuss their ongoing testimony with their attorney during an overnight trial recess. In Berk v. Choi, the justices will consider whether state laws requiring plaintiffs to attach an expert affidavit to certain lawsuits apply in federal court.  The Supreme Court will also announce orders.   The U.S. Court of Appeals for the District of Columbia will hear oral arguments in the Trump administration's appeal of a judge's order blocking the Department of Homeland Security's rule enabling expedited removals for migrants who cannot prove they have been in the country for two years.  A federal judge in Maryland is set to hold a status conference to set scheduling in mistakenly deported man Kilmar Abrego Garcia's case fighting deportation.  Tuesday The Supreme Court will hear oral arguments over whether Colorado's conversion therapy ban violates the First Amendment. The case is Chiles v. Salazar.  The justices will also hear oral arguments regarding a double jeopardy question that divides seven circuits but about which the solicitor general and petitioner agree. The case is Barrett v. United States.   WHAT WE'RE READING Reuters's Brad Heath: Exclusive: Federal drug prosecutions fall to lowest level in decades as Trump shifts focus to deportations The New York Times's Ana Swanson: Trump Expands Tariffs Beyond Supreme Court's Reach Fox News's Joshua Q. Nelson: Florida vows legal action against any efforts to block TPUSA chapters on campus CNN's Devan Cole: Donald Trump's own words could doom the criminal case against James Comey, legal experts say New York Law Journal's Rebecca Rakoski and Patrick Isbill: Questions Over Where Liability Begins for Dr. A.I. We'll be back next Wednesday with additional reporting and insights. In the meantime, keep up with our coverage here. Questions? Tips? Love letters, hate mail, pet pics? Email us: elee@thehill.com and zschonfeld@thehill.com.  On Signal: @elee.03 and @zachschonfeld.48.  Privacy Policy   |   View in Browser    |   Manage Subscriptions Sign Up for Other Newsletters   |   Unsubscribe  400 N Capitol Street NW Suite 650, Washington, DC 20001 Copyright © 1998 - 2025 Nexstar Media Inc.   |   All Rights Reserved.

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