This is part of the Brennan Center’s response to the coronavirus.
The Brennan Center is compiling the formal policy responses of federal courts, immigration courts, and state courts to the Covid-19 public health crisis.
Thus far, courts’ responses vary substantially across jurisdictions, with policies ranging from carrying on business as usual to closing courthouses entirely and suspending in-person proceedings indefinitely. Even within the same jurisdiction, different courthouses and judges often have wide discretion to determine which hearings must take place in person and which court personnel must come to work.
Courts are quickly adopting new policies and we will seek to update this page on a monthly basis.
Last Updated: 9/9/2020
Federal Courts
Supreme Court of the United States
On March 16, the Supreme Court of the United States postponed oral arguments scheduled through April 1. Beyond oral arguments, however, the Court pledged to continue the rest of its business as usual with some justices and employees working remotely. It declined to extend filing deadlines.
According to the Court, “The Court’s postponement of argument sessions in light of public health concerns is not unprecedented. The Court postponed scheduled arguments for October 1918 in response to the Spanish flu epidemic. The Court also shortened its argument calendars in August 1793 and August 1798 in response to yellow fever outbreaks.”
The Court initially declined to change filing deadlines but extended some deadlines in a March 19 order.
On April 3, the Court postponed its oral arguments scheduled for the April session, and on April 13, it announced that it would hear 10 of the 20 previously postponed oral arguments by telephone in May. The Court provided a live audio feed of those arguments, available here.
Official Sources:
Press Release (April 13): https://www.supremecourt.gov/publicinfo/press/pressreleases/pr_04–13–20
Order (April 3): https://www.supremecourt.gov/publicinfo/press/pressreleases/pr_04–03–20
Order (March 19):
https://www.supremecourt.gov/orders/courtorders/031920zr_d1o3.pdf
Press Release (March 16): https://www.supremecourt.gov/publicinfo/press/pressreleases/pr_03–16–20
Federal District and Circuit Courts of Appeals
The 94 federal district courts and 13 circuit courts of appeals have responded individually to the crisis. Many district courts initially closed their doors to the public, postponed jury trials and grand jury proceedings, and ordered that judges waive certain appearances if a defendant consents, or conduct them by phone where possible. By contrast, in other parts of the country, some courts have made minimal or no changes to their operations other than prohibiting courthouse access for persons with a recent history of international travel or possible Covid-19 exposure. The operations of district courts, which rely more on in-person appearances than do the courts of appeals, have been more dramatically affected by policies related to Covid-19.
Official Sources:
Orders and statements from the federal courts are available in the below spreadsheet. We have provided summaries of the orders from the circuit courts of appeals and the district courts. Some jurisdictions have issued more than two orders, so please refer to the corresponding website for access to all of the orders granted by each jurisdiction.
The Administrative Office of the U.S. Courts has also compiled orders from some district courts, appeals courts, and bankruptcy courts: https://www.uscourts.gov/about-federal-courts/court-website-links/court-orders-and-updates-during-covid19-pandemic
Immigration Courts
The United States Department of Justice (DOJ) directs the country’s Immigration Courts, which fall under the authority of the Executive Branch. On Sunday, March 15, an unlikely coalition of ICE officers, immigration defense attorneys, and immigration judges wrote to the DOJ calling for the “emergency closure of the nation’s Immigration Courts.” According to the letter from the unions representing immigration lawyers, prosecutors, and judges – the National Association of Immigration Judges, the Immigration and Customs Enforcement Professionals Union, and the American Immigration Lawyers Association – the DOJ’s response up to that point, which involved closing only the Seattle Immigration Court, “fail[ed] to meet its obligations to ensure a safe and healthy environment within our Immigration Courts.” The groups pledged to work together to address priority matters, like bond hearings for persons in detention, using available technological tools.
On March 18, the DOJ closed many Immigration Courts and postponed all hearings except for those involving detained individuals. The DOJ also issued a memorandum encouraging judges to use their authority to minimize in-person hearings. Advocates have continued to call for the DOJ to go further by releasing detained individuals and postponing all hearings.
Official Sources:
Immigration Court Operational Status During Coronavirus Pandemic (regularly updated): https://www.justice.gov/eoir/eoir-operational-status-during-coronavirus-pandemic
DOJ Executive Office for Immigration Review Memo, Immigration Court Practices During the Declared National Emergency Concerning The Covid-19 Outbreak (March 18, 2020): https://www.naij-usa.org/images/uploads/newsroom/2020.03.18.00.pdf
State Courts
State courts have also adopted a wide range of policies, including granting varying levels of discretion to their lower courts to determine policies appropriate for their regions. For example, New York’s Chief Administrative Judge issued a statewide order postponing “all non-essential functions of the courts until further notice,” and described the creation of special courts to hear an enumerated list of essential matters. The Pennsylvania Supreme Court, on the other hand, initially declared a statewide judicial emergency but let courts determine “on a district-by-district basis” whether to declare emergencies in their district. The Pennsylvania court has since ordered statewide closure of all courts except for essential services.
As of September 9, 38 states and the District of Columbia have restricted or suspended most in-person proceedings and subsequently either mandated or encouraged the use of remote technology for court proceedings.
Official Sources:
Orders and statements from state courts are available in the below spreadsheet. We have also provided summaries of each of the orders. Some states have issued more than two orders, so please refer to the corresponding website for access to all of the orders granted by each jurisdiction.
For corrections or updates, please email janna.adelstein@nyu.edu