Passed by Congress and signed by the president on Friday, the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) offers $2 trillion in relief for businesses, individuals, federal agencies and local governments. Among the beneficiaries is the federal judiciary, set to receive $7.5 million in additional funds to help continue operations during the public health crisis.

Let’s break down how the CARES Act impacts federal courts.

The Supreme Court

The bill first provides $500,000 in “salaries and expenses” to the Supreme Court in order to “prevent, prepare for, and respond” to the COVID-19 pandemic. The language is broad and gives the Supreme Court a great deal of discretion over how to respond to the current emergency.

Before legislation was passed, the Court had taken several steps to protect justices and the public. In early March, the Court—like the Capitol Building—closed to the public. On March 16, the Court postponed the month’s oral arguments. On March 19, the Court extended deadlines in cases it had not already agreed to hear. A few days later, it was reported the justices held their weekly conference by phone. And, through it all, the Court continues to regularly release orders and opinions remotely. In fact, last week reportedly marked “the first time since Bush v. Gore that the justices issued rulings without reading decisions from the bench during an official public session.”

Yet several operational questions for the Court remain. Will the Court continue to regularly release orders and opinions? Will the Court postpone upcoming oral arguments set for April? The Congress’s recent appropriation (and broad guidance) could help answer these questions. The Court could use the funds to continue (and improve) teleconferencing between chambers and clerks, ensuring the Court can issue opinions on cases it has already heard. The Court could also use the funds to hear arguments remotely and later release these recorded hearings to the public. (Even during non-emergencies, the Court’s public hearings are largely hidden from view. Public seating is limited, transcripts are released hours later and audio recordings are not released until the end of the argument week.)

Lower Federal Courts

A week before the CARES Act was signed into law, the Administrative Office of U.S. Courts had already instructed lower federal courts to allow most employees to telework, avoid in-court proceedings and “utilize videoconferencing or audioconferencing capabilities where practicable.” Around this time, courts around the country began closing courthouses to the public, extending filings deadlines and postponing civil and criminal trials.

Yet these federal courts remain open for business. Several circuit courts, for instance, are holding some oral arguments by audio or video conference (and postponing a number of arguments). Others are taking the additional step to livestream these hearings on the internet. Many district courts are similarly using audio and teleconferences to conduct pretrial hearings.

The CARES Act provides $6 million for these courts to continue necessary operations, focusing primarily on keeping the federal criminal justice system intact. Specifically, the new law states that if COVID-19 “will materially affect the functioning of either the Federal courts generally or a particular district court,” any impacted court is permitted to conduct virtually any criminal pretrial hearing. Even felony pleas and sentencings may be conducted by teleconference if the hearing “cannot be conducted in person without seriously jeopardizing public health and safety,” and the district judge finds that delay would cause “serious harm to the interests of justice.” Last, the bill provides an additional $1 million to federal defender services to help continue their operations.

The federal judiciary is already putting the tools provided by the CARES Act into practice. The Judicial Conference of the United States just announced it “has temporarily approved the use of video and teleconferencing for certain criminal proceedings and access via teleconferencing for civil proceedings during the COVID-19 national emergency.” In some instances, the Conference has also temporarily changed its “broadcast/cameras policy to allow a judge to authorize the use of teleconferencing to provide the public and media audio access to court proceedings.”


District and circuit courts have been largely proactive in responding to the COVID-19 pandemic. With courthouse doors now mostly closed around the nation, these lower courts have committed to using technology to continue their core operations and maintain public access.

The Supreme Court, on the other hand, has been more vague. The fate of future oral arguments is uncertain, and it is still unknown how these hearings will be made available to the public. If arguments continue like they have in lower federal courts around the country, the Supreme Court has a unique opportunity to explore new ways to make its hearings accessible to the public. If not, Congress may turn to already-introduced legislation to make sure they do in the future.

Image credit:  Anton Iakovenko

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