When the Courts Go Dark:
Constitutional Fault Lines in the
Federal Judiciary’s Funding Crisis

October 20, 2025

The federal judiciary now finds itself in a position that is at once extraordinary and revealing. For the first time in years, the courts have run out of operating funds and, beginning October 20, 2025, will enter a period of sharply curtailed operations. According to the Administrative Office of the U.S. Courts, only “core constitutional functions” will continue; many court staff will be furloughed, and cases that do not implicate essential functions may be delayed indefinitely. This is more than a logistical problem. It is a moment that lays bare a deep constitutional tension: a co-equal branch of government that is functionally dependent on congressional appropriations can be brought to its knees by political gridlock.

A Co-Equal Branch on a Congressional Leash

The American judiciary was never designed to operate like an executive agency. Article III of the Constitution vests the judicial power in a Supreme Court and such inferior courts as Congress may establish, and it shields federal judges from political retaliation by prohibiting the diminution of their salaries during their tenure. The Framers understood judicial independence as essential to the preservation of the rule of law, and the Judiciary Act of 1789 gave practical effect to that vision by creating a national system of courts structurally insulated from day-to-day politics.

Insulation is not the same as independence. The courts cannot print their own money or set their own budget. Their operations depend on congressional appropriations. When appropriations lapse, as they have in this prolonged government shutdown, the judiciary faces an existential paradox: it must carry out its constitutional duties with no guarantee of the resources to do so. This paradox is not new. During the shutdowns of 1995–96, 2013, and 2018–19, the judiciary relied on fee balances and reserve funds to keep the lights on. This time, those reserves are gone. For the first time, the judiciary will begin operating on constitutional triage alone.

Constitutional Minimalism Meets the Anti-Deficiency Act

The legal framework governing shutdowns compounds this tension. Under the Anti-Deficiency Act (31 U.S.C. §§ 1341, 1342), federal agencies are prohibited from spending or obligating funds in excess of appropriations, except where necessary to fulfill constitutional obligations. For the judiciary, that means keeping criminal courts open, preserving core adjudicatory functions such as habeas review, and ensuring that matters implicating immediate constitutional rights continue. Civil litigation and other routine administrative functions, however, may be paused or dramatically slowed.

This form of constitutional minimalism raises its own legal questions. Each district and circuit is empowered to determine which matters are “essential,” creating a patchwork system in which similarly situated litigants may receive very different treatment depending on geography. This unevenness invites concerns about due process and equal protection. A party litigating in the Northern District of Texas, which has pledged to continue hearing cases, may proceed largely as usual, while a litigant in another district could see their matter postponed indefinitely. The constitutional promise of equal justice under law is strained when access to the courts turns on the accident of venue during a funding crisis.

The Erosion of Access to Justice

The Supreme Court has long recognized that access to the courts is a critical element of due process. In Boddie v. Connecticut (1971), the Court held that the state could not deny indigent litigants access to divorce proceedings by imposing insurmountable fees. Later, in Tennessee v. Lane (2004), the Court reaffirmed that access to judicial proceedings is a fundamental right, particularly where other constitutional rights are at stake. Though a funding lapse does not formally bar litigants from the courthouse door, it functionally narrows that doorway for many — particularly those without the resources to weather delays.

The burden is not felt evenly. Civil litigants—particularly small businesses, individuals, and nonprofit organizations—will likely face mounting uncertainty, deferred hearings, and postponed trials. Criminal defendants awaiting sentencing or appeal could see their cases delayed, potentially implicating their liberty interests. Even well-resourced corporate litigants will face strategic uncertainty as procedural calendars shift unpredictably. The courts’ public legitimacy—grounded in their capacity to provide timely and impartial justice—is fragile in moments like this.

Historical Lessons and Structural Gaps

This is not the first time the judiciary has been thrust into austerity by congressional inaction. However, each iteration reveals that the branch’s reliance on annual appropriations is a structural vulnerability. In 2013, the judiciary managed roughly ten days of operations beyond the shutdown’s start. In 2018–19, that figure stretched to over a month. In 2025, there is no remaining cushion. Each shutdown accelerates the judiciary’s slide from functioning as a fully operational branch of government to existing as a skeleton crew—a constitutional mandate barely sustained by triage.

For decades, legal scholars have argued for more durable mechanisms to protect the judiciary’s operational independence. Proposals have included automatic continuing appropriations for the judiciary, the establishment of a judicial trust fund, or other structural reforms that would insulate the courts from the oscillations of partisan appropriations battles. Moments like the present illustrate why such reforms may be necessary.

Strategic Implications for Litigants

For litigants and their counsel, the consequences of this crisis are immediate and practical. Cases may be delayed, rescheduled, or stalled altogether—often with little notice. Local orders will vary significantly across jurisdictions: attorneys must track developments closely to protect procedural rights. Statutes of limitations, filing deadlines, and jurisdictional clocks continue to run regardless of appropriations, placing the onus on counsel to make protective filings and preserve claims.

These disruptions also shape litigation strategy. Parties may leverage delays to press for settlement or seek emergency relief to push their case into the “essential” category. Others may face mounting costs from prolonged uncertainty. No matter the posture, litigants should not assume their case will be insulated from the effects of the shutdown simply because the courts remain “open.”

Patent Litigation and Enforcement in a Funding Crisis

The judiciary’s retreat to “core constitutional functions” may not formally close the courthouse doors, but for patentees it can have a profound impact on both enforcement strategy and portfolio value. Patent rights are fundamentally exclusionary; their economic power depends on a patentee’s ability to enforce those rights in Article III courts. When courts slow down or go quiet, so too does the practical enforceability of the patent itself.

Patent litigation is often exceptionally time-sensitive. Preliminary injunctions, temporary restraining orders, and motions for expedited discovery can be decisive in fast-moving industries such as life sciences, software, and consumer electronics. If district courts are operating on reduced staff or prioritizing only essential criminal proceedings, those motions may face delays that render them strategically ineffective. For patentees seeking to halt ongoing infringement, each week of lost time can translate into lost market share, eroded licensing leverage, and diminished competitive advantage.

The ripple effects extend up the judicial chain. The Federal Circuit—the exclusive appellate forum for patent matters — may also experience scheduling disruptions and reduced capacity. Patentees awaiting appellate outcomes that could unlock licensing deals, settlements, or product launches may face months of uncertainty. Even the Supreme Court, which has closed its building to the public and is operating in limited fashion, may delay certiorari decisions in patent cases with national commercial significance.

This imbalance is compounded by the fact that the United States Patent and Trademark Office remains open. Since it is funded through user fees, the USPTO continues to accept and process filings, conduct examinations, and maintain PTAB operations during the shutdown. In practical terms, administrative actions may continue while enforcement stalls, creating procedural asymmetry that patentees must navigate carefully. Litigants could find themselves defending against IPRs or ex parte reexaminations while unable to advance their infringement suits in district court.

The International Trade Commission, by contrast, is directly affected by the shutdown. Investigations under Section 337 will pause, and no new investigations will commence during the funding lapse. For companies that rely on the ITC for fast-track injunctive relief and trade remedies, this effectively removes a critical enforcement venue, at least temporarily.

Patentees should consider the timing of new filings, evaluate the risks of procedural limbo, and, where possible, pursue alternative or parallel strategies that are not as dependent on judicial capacity. This may include leveraging early negotiations, pursuing administrative actions that remain available, or adjusting the cadence of enforcement to align with expected delays. It is a stark reminder that patent rights exist at the intersection of administrative grant and judicial enforcement — and when the latter falters, the former loses much of its power.

A Constitutional Canary in the Coal Mine

The judiciary has long been described as the “least dangerous branch,” lacking both the purse and the sword. But when the purse is withdrawn entirely, the fragility of that position comes into stark relief. The present funding crisis is not simply another byproduct of a political stalemate—it is a demonstration of how quickly the operational stability of a co-equal branch of government can be undermined.

For litigants, businesses, and rights holders—including those navigating complex IP landscapes—this moment underscores a hard reality: legal rights are only as meaningful as the infrastructure available to enforce them. When courts slow, the consequences ripple far beyond individual dockets. Markets shift. Leverage erodes. Strategic windows close.

This is not a call for any particular policy outcome. It is a recognition of a structural truth. A judiciary that can be partially immobilized by budgetary impasse is one that requires careful, long-term thinking about resilience and continuity. Whether through legislative reform, administrative planning, or renewed attention to contingency strategies by litigants themselves, the legal community will need to adapt to a landscape where judicial interruptions are no longer unthinkable but foreseeable.

Because when the courts' capacity falters, the rule of law becomes more fragile than most of us care to admit.