Federal Court Funding

Last Updated: 4/25/2019

Overview

The Federal Judiciary requires sufficient funds to perform the core functions assigned to it by the Constitution and Congress. These include adjudicating all cases filed in federal courts; supervising defendants awaiting trial and criminals on post-conviction release; providing representation for indigent defendants; securing jurors for jury trials; and ensuring the safety of all those who work at or enter federal court facilities. These are vast responsibilities that generate a workload over which the Judiciary has no control. In 2017, over 395,000 cases were filed in district courts and courts of appeal; over 790,000 petitions were filed in bankruptcy courts; approximately 223,000 persons were placed under pre-trial or post-conviction supervision; and 185,000 indigent criminal defendants were provided counsel under the Criminal Justice Act.

Deficit Reduction and the Courts

The Budget Control Act (BCA) of 2011, P.L. 112-25, provided a blueprint to reduce the federal deficit by over $2 trillion by the year 2021. Unpopular and politically contentious since its passage, the act mandated across-the-board budget cuts in 2013, followed by reductions to the annual caps on discretionary spending (as well as automatic cuts to selected entitlement programs) in each year from 2014 through 2021. The law provides that failure to adhere to the budget caps in any designated year will trigger another across-the-board sequestration.

In FY 2013, sequestration reduced non-defense discretionary spending by five percent. The Judiciary, like every other component of government, was subject to the mandatory sequestration, resulting in a $350 million funding cut, which constrained court operations nationwide. Throughout the year, budget negotiations continued to be contentious and resulted in a 16-day government shut-down.  

Congressional will to reduce the budget quickly subsided, and since 2013, Congress has bypassed the BCA caps by passing a series of budget deals that have raised discretionary spending caps.

• In December 2013, Congress passed a two-year budget deal (P.L. 113-67) that significantly raised the discretionary spending caps for the 2014 and 2015 fiscal years.
• Similarly, in 2015, congressional leaders agreed to replace the BCA spending limits with a plan to raise discretionary caps by $80 billion over two years and suspend the debt limit until March 17, 2017. The cap increase − $50 billion in 2016 and $30 billion in 2017 − was split evenly between defense and nondefense accounts, a precondition that Democrats demanded from the start.
• True to form, in February 2018, the “Bipartisan Budget Act of 2018,” which was signed into law, raised the spending limits for FY 2018 and FY 2019. Nondefense funding was raised $63 billion in FY 2018 and $68 billion in FY 2019.

The Judiciary has benefitted from these adjustments over the past five years and is likely to benefit again in FY 2019.

• In FY 2014, Congress restored the Judiciary’s discretionary funding to its pre-sequestration level of $6.516 billion. 
• In FY 2015, the Judiciary received $6.7 billion in discretionary funding, a 2.8% increase over the prior year.
• In FY 2016, the Judiciary was funded at $6.78 billion in discretionary funding, a 1.2% increase over FY 2015 funding.
• In FY 2017, the Judiciary was funded at $6.9 billion in discretionary funding, a 2.2% increase over the prior year’s funding.
• In FY 2018, the Judiciary was funded at $7.1 billion in discretionary funding, a 2.7% increase over the prior year’s funding.
• In FY 2019, the Judiciary was funded at $7.26 billion in discretionary funding, a 2.1% increase over the prior year's funding.

Unable to pass a comprehensive spending bill by the start of the 2019 fiscal year, Congress passed a series of continuing resolutions to keep the government operating. While about half of the 12 appropriations bills were passed and signed into law, the remaining parts of the government, including the Federal Judiciary, were funded through a series of continuing resolutions through December 21, 2019. At that point, a partial government shutdown was triggered and continued to January 25. The Judiciary was able to continue to operate by using court fee balances and other "no-year" funds. The Administrative Office of the U.S. Courts (AO) estimated that federal courts could sustain funded operations through Jan. 31, 2019. The ability to operate that long was attributed to aggressive efforts to reduce expenditures. Courts and federal public defender offices delayed or deferred non-mission critical expenses, such as new hires, non-case related travel, and certain contracts. In addition, in response to requests by the Department of Justice, some federal courts have issued orders suspending or postponing civil cases in which the government is a party, and others have declined to do so. 

If the Judiciary had run out of funds, it would have operated under the terms of the Anti-Deficiency Act, which permits mission critical work. This includes activities to support the exercise of the courts' constitutional powers under Article III, specifically the resolution of cases and related services. Each court would have had to determine the staff necessary to support its mission critical work. 

Additional information on the Judiciary's appropriation for FY 2013 - FY 2018 is available here. 

FY 2020 Request: $7.65 Billion in Discretionary Funding

The Judiciary's FY 2020 discretionary budget request of $7.6 billion is approximately a 4.5 percent increase over the Judiciary's FY 2019 appropriation of $7.26 billion. The FY 2020 request is accessible here. 

According to the above FY 2020 Congressional Budget Summary, prepared by the Administrative Office of the U.S. Courts in February 2019, the $350 million requested increase in discretionary spending will be used as follows (pp ii-iii):

"For the courts' Salaries and Expenses account, the Judiciary requests $5.4 billion, an increase of $230 million (4.5 percent) in discretionary appropriations over the FY 2019 assumed level. This request funds current services, as well as a number of critical new investments, including six additional full-time magistrate judges, required infrastructure associated with ongoing courthouse construction projects, and the replacement of two critical information technology systems involving financial disclosure reporting and personnel/payroll projections. The request includes court support staffing requirements in FY 2020 to support projected workload. 

For the Defender Services account, the Judiciary requests $1.2 billion, an increase of $77.2 million (6.7 percent) over the FY 2019 assumed level. This request includes sufficient funding to continue implementation of the federal defender organization staffing formula and to support projected panel attorney representations in FY 2020. The request also includes a $7 per hour above-inflation increase to the non-capital panel attorney hourly rate (from $142 per hour to $149 per hour). With this proposed increase, the non-capital panel attorney hourly rate would be at the projected statutory maximum. Finally, this request includes additional positions for program oversight and training, as well as funding for necessary information technology upgrades.

For the Court Security account, the Judiciary requests $641.3 million, an increase of $34 million (5.6 percent) over the assumed FY 2019 level. The request includes funding for the continued implementation of the physical access control systems replacement strategy, as well as security infrastructure and additional court security officers (CSOs) for new courthouses. In addition, the FY 2020 request includes funding for the implementation of a new video management system replacement plan, continued phased implementation of the revised CSO staffing standards, and additional district supervisors for the CSO program. 

For the Fees of Jurors and Commissioners account, the Judiciary seeks $51.9 million, an increase of $1.1 million (2.2 percent) over the FY 2019 assumed level. The FY 2020 request is sufficient to fund all projected petit and grand juror requirements."

Congressional Activity

Justices Alito and Kagan testified at a hearing on March 7, 2019 before the House Appropriations Financial Services Subcommittee with regard to the FY 2020 budget request for the Supreme Court, which is a separate line item in the Judiciary's budget. They requested $87.7 million in discretionary spending for the Supreme Court, about $6.7 million over the FY 2019 appropriation, an increase that Justice Alito said is necessary to cover the continuation of existing activities. (Justice Alito's written statement on behalf of both of them is available here.)

Spending for FY 2020 will be limited by the caps imposed by the Budget Control Act of 2011 (PL 112-25) unless Congress passes legislation to lift the caps, as it has done every year since 2014. 

The House Budget Committee approved a draft bill by a vote of 19-17 that would increase spending caps for both defense and nondefense programs for FY 2020 in roughly equal measure. Democrats have long insisted on "parity" in the treatment of defense and nondefense spending increases, while the Republicans want to raise the spending cap only for defense. 

The bill sets the stage for months of difficult negotiations over spending levels for FY 2020 and 2021, the last two years covered by the deficit reduction law that both parties have come to resent. 

The draft bill would add about $88 billion to both defense and nondefense spending limits in FY 2020, and another $90 billion each to those limits in FY 2021. The defense limit, which doesn't count war spending (known as overseas contingency spending), would be set at $664 billion in FY 2020 ($17 billion or 2.6 percent above the current year's level), and would rise to $631 billion in FY 2020 ($34 billion or a 5.7 percent boost above this year's level), and to $646 billion in FY 2021. Without a deal to raise spending, all discretionary spending would need to be cut by 10% in FY 2020.

Key Points

• The ABA urges Congress, when making budgeting decisions, to take into consideration that the Federal Judiciary is essential to preserving constitutional democracy and freedom.
• The ABA urges Congress to protect the Federal Judiciary from future deficit reduction.
• ABA policies on federal court funding may be accessed here. 

Contact

Denise A. Cardman, Deputy Director
Governmental Affairs Office
American Bar Association
denise.cardman@americanbar.org