The front door of the Supreme Court faces the Capitol building. Across the top of the building’s face, the Court’s motto quietly declares “Equal Justice Under Law.” On the First Monday of October, it seemed more like a shout.
Most First Mondays—the congressionally established first day of the Supreme Court Term—justice and law intersect or diverge mainly through the cases the court decides. But this First Monday, all eyes were on Congress, to see whether it is reading the court’s motto and processing it.
That’s because, with the government shutdown, the Supreme Court—and all of the other 107 federal courts from Puerto Rico to Alaska—will be out of money for operations by the end of next week. The Supreme Court has announced on its website that the first week of oral arguments will go forward. After that? No one, including the 500 people who work inside that building, seems to be sure.
The Supreme Court has gotten a bad rap in recent years, with some saying that the high court decides too few cases (approximately 75 a year), some saying its decisions are too ideologically based (although only 16 out of 78 last term were split 5-4 on ideological lines), some arguing that the justices are turning back the clock on civil rights and liberties (as evidenced, they say, by decisions that expand the power of the police and limit the rights of minorities).
But even those whose respect for the Supreme Court and its traditions, its intellect and its majesty, will be witnessing the failure of justice next week if the court is forced to shut down or run with only a skeleton crew.
Of course, it is true that hundreds of thousands of government workers have been furloughed, and the media has vigorously covered their plight. But for the very seat of justice to close its doors because it must bow to the stubborn law makers across the street—to put equal justice quite literally in a position under law—would bring the stark reality that is the congressional stalemate to a very vivid light.
After all, even though the nine Justices do sometimes bitterly disagree—remember Justice Ruth Bader Ginsburg’s angry dissent in the Voting Rights Act case just a few short months ago, or Justice Antonin Scalia’s in the same sex marriage cases?—they make a decision, and they move forward. They do not pack up their toys and refuse to play any longer. Sometimes, like in last term’s affirmative action case, they take their time (eight long months, in that case) in making decisions that will affect all Americans. But decide they do, in a way that allows America and its citizens to continue to do business.
The federal judiciary, of which Chief Justice John G. Roberts, Jr., is the head, has issued a statement saying that judges are essential employees and will continue to hear and decide cases, however long the shutdown continues. Even if the courts continue to operate at some reduced level, it will no doubt take longer for them to hand down opinions, to schedule hearings and arguments and to issue orders. Even so, think about what this means for those who seek access to justice. For them, the old axiom “justice delayed is justice denied” will hold all too true.
And what appearance does that give the country? That even justice can be sacrificed at the altar of political discourse.
This week, as the leaves begin to turn in Washington, D.C., and the justices of the Supreme Court don their black robes for the first time since June, the men and women who represent us in Congress should look out their windows at the marble palace across the street and consider whether they are ready to turn their backs on equal justice under law for all.
Supreme Court scholar Lisa McElroy is a visiting associate professor of law at University of Denver Sturm College of Law.