Federal Courts, Crises, and the Novel Coronavirus: How America’s Courts Respond to Exigent Circumstances

Article III of the United States Constitution is the federal judiciary’s oracle:

The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.

While many elements of American political, social, and economic life have changed since the founding era, U.S. federal courts have faithfully followed Article III’s core provisions. But during times of challenge, crisis, or pandemonium, does this claim hold true? In this post, we can refer to these unique inflection points as “exigent circumstances.” Given 2020’s turbulent start, one might ask the question, “how does the federal judiciary respond to exigent circumstances?”

This post explains and answers this question by looking toward the past to explain what is happening in the present. Throughout American history, the federal judiciary has been faced with hardships and adversities, all while being tasked with maintaining its constitutional obligations. The novel coronavirus (“COVID-19”) has fueled a global health pandemic, shuttering cities, states, and countries. Normalcy has been engulfed, and lawyers and judges are not immune. This overwhelming crisis has sent reverberating shockwaves into the lifeblood of the American legal community. At a time when federal courts play an active—and important—role in America’s body politic, history demonstrates that while the federal judiciary has faced countless crises that threatened the ability of the courts to abide by Article III’s mandate of ensuring that civil liberties and constitutional rights are protected, federal courts are nevertheless resilient.

 

A. The Federal Judiciary’s Historical Crises 

The start of 2020 was viewed with a sense of optimism and hope—both for a new year and decade. However, the year was off to a turbulent start; the cloud of the nation’s third presidential impeachment lingered, basketball great Kobe Bryant was killed in a helicopter crash, and the battle for the 2020 Democratic presidential nomination intensified. Underlying it all, and quietly lurking in the world’s shadow, a monumental catastrophe was on the horizon—COVID-19.

While the novel coronavirus is unique in many ways, the nature of the crisis is nothing new for federal courts. History reveals that the federal judiciary has faced countless crises or exigent circumstances. A most noteworthy crisis was the suspension of habeas corpus by President Abraham Lincoln during the Civil War, setting up a showdown between President Lincoln and Chief Justice Roger Taney. In terms of viral threats, in the 1790s, yellow fever shuttered the Supreme Court’s work in Philadelphia. Fast forward to 1918 and the Spanish flu; on Oct. 8, 1918, the Court suspended and postponed all arguments. Nearly a month later, on Nov. 2, 1918, the Court’s hiatus came to an end, and arguments resumed shortly after.

During the Cold War between the United States and the Soviet Union, the federal government even made plans to covertly relocate some federal courts and judges. These efforts were aimed at ensuring continuity in government—also known as “continuity of operations plan” (COOP)—in the event of a nuclear attack on the United States. Appropriately, under Cold War-era COOPs for federal courts, those plains aimed to “preserve” security of senior level judicial officers—namely, the chief justice and associate justices of the Supreme Court—by relocating them to a secure location in the event of “nuclear fallout.”

Following the Al-Qaeda terrorist attacks of Sept. 11, 2001, the federal judiciary responded to the heightened threat of terrorism in the United States. Prior to September 2001, security of federal courts came in the form of recommendations and guidance from the Administrative Office of the United States Courts (AOUSC). However, post-September 11th, federal courts were faced with a host of possible threats and security issues. Accordingly, the AOUSC took steps to enhance the federal judiciary’s security. Notably, the AOUSC created the Office of Emergency Preparedness to help develop “crisis response and COOP plans.” This included testing of federal courthouses for biological and chemical hazards, such as anthrax.

Catastrophic weather events also hamper court business. On Aug. 29, 2005, disaster struck the Gulf Coast of the United States when Hurricane Katrina pummeled Louisiana, Mississippi, and Alabama. In response to this monumental storm, federal courts in New Orleans, Mobile, and Gulfport were “rendered inoperable due to the effects of the storm.” Because of this catastrophic physical damage, the Judicial Conference “asked Congress … to pass emergency legislation to allow courts to shift court proceedings temporarily into adjacent judicial districts when emergency circumstances require it and again in September following Hurricane Katrina.” In October 2012, many federal courts on the U.S. Eastern Seaboard shuttered in preparation for “Superstorm Sandy.” This included closures of the U.S. Supreme Court; the U.S. Court of International Trade; and the U.S. Courts of Appeals for the District of Columbia, Second, and Third Circuits, as well as various district and bankruptcy courts.

 

B. The Coronavirus Pandemic and Federal Courts

Pivoting back to the coronavirus, what responses and lessons have we learned? Despite the well-established hierarchy and structure of the federal judiciary, and emergency provisions of the Anti-Deficiency Act, not much is uniform because federal courts are historically given wide latitude in times of crisis; “discretion” is the guiding lodestar. As one commentator notes, “[b]eyond the Supreme Court, the federal judiciary is highly decentralized, both geographically and administratively. The courts are dependent on executive branch agencies for the provision of office and courtroom space, and physical security.” One legal commentator referred to the response of federal courts as “a patchwork of accommodations” because the actual responses are varied from district to district. And while the “new normal” is a far cry from what we once knew as normal, as mentioned previously, it is not entirely unprecedented.

Generally, the federal courts’ responses have been effective in keeping the court system open and operational. For example, the U.S. Supreme Court responded to the coronavirus by postponing oral arguments in March and April. What was unprecedented was the Court’s decision to conduct oral arguments telephonically in the month of May. While historical in nature, it allows for the Court’s important work to carry on despite the coronavirus pandemic.

Most lower courts—including appellate and district—have followed suit for civil cases. And in a sharp turn toward permitting criminal proceedings to take place virtually, on Tuesday, March 31, 2020, the Judicial Conference temporarily approved the use of video and teleconferencing for certain criminal proceedings and access via teleconferencing for civil proceedings during the COVID-19 pandemic under the Coronavirus Aid, Relief, and Economic Security (CARES) Act.

Per the CARES Act, “this [new] finding allows chief district judges, under certain circumstances and with the consent of the defendant, to temporarily authorize the use of video or telephone conferencing for certain criminal proceedings during the COVID-19 national emergency.” Accordingly, based upon the authorization found in the CARES Act, the chief judge of a federal district court may authorize the following hearings to be held via video teleconference, upon motion of the attorney general (or his designee), or on motion of the judge or justice:

• Detention hearings under 18 U.S.C. § 3142;
• Initial appearances under Rule 5 of the Federal Rules of Criminal Procedure;
• Preliminary hearings under Rule 5.1 of the Federal Rules of Criminal Procedure;
• Waivers of indictment under Rule 7(b) of the Federal Rules of Criminal Procedure;
• Arraignments under Rule 10 of the Federal Rules of Criminal Procedure;
• Probation and supervised release revocation proceedings under Rule 32.1 of the Federal Rules of Criminal Procedure;
• Pretrial release revocation proceedings under 18 U.S.C. § 3148;
• Appearances under Rule 40 of the Federal Rules of Criminal Procedure;
• Misdemeanor pleas and sentencings as described in Rule 43(b)(2) of the Federal Rules of Criminal Procedure; and
• Proceedings under 18 U.S.C. § 403 “Federal Juvenile Delinquency Act” hearings, except for contested transfer hearings and juvenile delinquency adjudication or trial proceedings.

Furthermore, similar to the process outlined above, felony pleas under Rule 11 of the Federal Rules of Criminal Procedure and felony sentencings under Rule 32 of the Federal Rules of Criminal Procedure may be conducted via video teleconference if the district judge finds “for specific reasons that the plea or sentencing in that case cannot be further delayed without serious harm to the interests of justice, the plea or sentencing in that case may be conducted by video teleconference.” But this authorization is not limitless or the proverbial “new normal.” According to the Judicial Conference’s interim guidance, this authorization will end 30 days after the date on which the president formally ends the national emergency.

Finally, in late April 2020, state governments began easing restrictions on measures enacted to prevent the spread of coronavirus. On April 24, 2020, AOUSC Director James C. Duff sent all federal judges an extensive memorandum outlining the process for federal courts to gradually “reopen.” Director Duff’s memorandum acknowledges a stark reality; while some federal courts are in a stable position to reopen—in light of their surrounding communities—other federal courts are “not close to this process yet as the pandemic continues to have severe impact in their communities.” Director Duff’s memorandum addresses a broad swath of issues, including jury trials, court proceedings, facility actions, COVID-19 testing, human resource considerations, and additional funding for beleaguered federal courts. However, the director also makes an unembellished observation; “[i]f conditions significantly worsen or there is a resurgence of local COVID-19 cases, consider . . . reimplementing full social distancing measures as necessary.” At the time of publication, most federal courts are in “Phase I.” As courts move toward Phases II and III of the AOUSC’s new guidance, at the time of submission, the outcome of whether or not this reopening plan is successful is still forthcoming. Time shall tell.

 

C. Key Takeaways

What lessons have we taken away—so far—from the coronavirus pandemic? COVID-19 continues to disrupt virtually every aspect of day-to-day life around the world and in the United States—including the life of our federal court system. While the coronavirus pandemic carries on, historical and contemporary inflection points teach important lessons about how the federal courts respond in times of crisis. As Article III dictates, it is the courts that must arbitrate legal disputes, but courts can only fulfill this obligation by remaining open. So far, the coronavirus has not brought an end to this practice.

First, this situation is not entirely unprecedented. As noted above, both the yellow fever and the Spanish flu caused the work of the courts to be disrupted. In one instance, with yellow fever, reemerging strains of the virus led the Supreme Court to suspend its work on two separate occasions—once in 1793 and again in 1798. More analogous to the modern threat of the coronavirus, the Spanish flu disrupted many aspects of American life, including the court system. And while the Supreme Court and lower federal courts have been making history by either using previously unused technology or altering the rules to permit videoconferencing capabilities in criminal cases, the idea of a disrupting event upsetting the norm is not a singular anomaly with respect to the coronavirus pandemic. Instead, what is markedly different from pandemics in 1798 or 1918 is the rapid rise and increase in the use of modern-day technologies, global transportation, and mass communication.

Accompanying this thought, the second lesson is that in an ever-changing world that is ever-connected by the rise of modern technology and social media, clear and effective communication from the federal court system is essential to manage the influx and deluge of information that is submitted to both the public and parties. One way that the AOUSC has aided in this effort is by maintaining a presence on social media sites such as Twitter, keeping litigants apprised of changes in various district practices in response to COVID-19. Furthermore, when visiting the AOUSC’s website, one is immediately met with a home page that provides a direct link to information relating to judicial preparedness and the coronavirus. This webpage also provides circuit- and district-level information related to court operations, filings, deadlines, and other administrative matters in light of the coronavirus pandemic. And because the courts have unique, distinctive responses to the coronavirus, agglomerating this information in a “user-friendly” format eases the burden placed upon advocates appearing before various federal courts.

Furthermore, the third takeaway is that COOPs play an important role in guiding federal courts through exigent circumstances by focusing on emergency preparedness, safeguarding the courts, and ensuring that people have access to justice even during times of crisis. As previously noted, efforts—both successful and unsuccessful—have been made to bolster and support the courts during times of emergency. As the AOUSC explains, there have been a variety of efforts made by the judiciary to improve emergency preparedness and disaster response. In testing “business continuity and emergency preparedness plans,” the judiciary has invested resources into security improvement measures, acted upon COOPs in response to Hurricane Sandy, and holds periodical judicial preparedness workshops on this topic. Furthermore, various resources exist for courts to use as guides, such as the National Center for State Courts’ emergency and security planning COOPs. Legal scholarship also covers this topic extensively, but at bottom, the coronavirus has taught the courts once again that despite preparation, unforeseen and unmitigable crises can arise spontaneously and without notice.

Fourth, providing individual federal districts and circuits with flexibility and discretion seems to be beneficial. But this discretion is not unbridled or limitless, as evident by the CARES Act. Additionally, in the “interests of justice,” federal courts may take discretionary measures to help parties by suspending PACER fees, extending deadlines, relocating courts, or placing court employees on administrative leave.

Fifth, it is evident that even in light of a pandemic, natural disaster, or war, there is a fierce need—and a desire—to protect civil rights and liberties. This is evident by the ongoing debate about “how far is too far” in terms of government responses and actions to prevent the spread of the coronavirus. Defying “stay at home orders,” protestors have actively resisted the state governments’ responses to the virus, and President Trump tweeted his support for these movements. All the while, as this vicious pandemic persists, federal courts remain open to hear and arbitrate the legal disputes surrounding COVID-19, including cases about alleged infringements on civil liberties under the U.S. Constitution.

Finally, meaningful assessment and analysis about the quality of the federal court system’s response to this public health crisis is difficult to conduct because the situation is ongoing and the target evermoving. As noted, current uncertainties with the coronavirus make risk analysis “nearly impossible.” Somewhere down the road, legal experts can analyze and determine whether federal courts acted in the most efficient, prudent, and effective manner in implementing COOPs.

 

D. Conclusion

The story of America’s federal courts operating during times of crisis is indeed a colorful and varied one. History provides both context and insight about how our nation’s leading lawyers have responded in times of crisis, both man-made and natural, to keep the wheels of justice spinning in unison. While the coronavirus brings with it an engulfing wave of abnormality and unrest, generally speaking, the federal courts have responded in a timely and reasonable fashion. While most courthouses remain closed for business and staff “work from home,” the court’s substantive business carries on behind the scenes, thanks to modern-day technology.

Preparedness is a never-ending venture. The federal court system has made planning for emergencies—including pandemics—a top priority, even when other branches of government seem to have abandoned the idea of government preparedness. Moving forward, when the fog of coronavirus does lift—and with unexpected and uncertain crisis all but a certainty sometime in the future—federal courts should remain vigilant and prepare for the next crisis, and 100 years from now, the lessons arising from the 2020 COVID-19 pandemic should inform the federal court system’s response to similar crises. We started this post with a discussion about President Lincoln and the suspension of the writ of habeas corpus during the Civil War. In the spirit of preparedness and planning, it is fitting that we end with a quote frequently attributed to President Lincoln; “Give me six hours to chop down a tree and I will spend the first four sharpening the axe.”

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A full copy of this Article, with complete sources and citations, is available in PDF format.

 

About the Author

Blake N. Humphrey is a rising 3L at the West Virginia University College of Law. Humphrey is a member of the West Virginia Law Review, West Virginia Law Intercollegiate Moot Court, and West Virginia University College of Law’s Supreme Court Clinic. Additionally, in 2019, he founded the West Virginia University College of Law’s Student Chapter of the FBA.He can be reached at bnhumphrey@mix.wvu.edu. 

 

About the FBA

Founded in 1920, the Federal Bar Association is dedicated to the advancement of the science of jurisprudence and to promoting the welfare, interests, education, and professional development of all attorneys involved in federal law. Our more than 16,000 members run the gamut of federal practice: attorneys practicing in small to large legal firms, attorneys in corporations and federal agencies, and members of the judiciary. The FBA is the catalyst for communication between the bar and the bench, as well as the private and public sectors. Visit us at fedbar.org to learn more.