The James R. Browning U.S. Court of Appeals Building in San Francisco, Calif., home of the 9th U.S. Circuit Court of Appeals (Noah Berger/Reuters)

But operations are scaled back.

In last week’s episode of The McCarthy Report podcast, Rich and I addressed some reporting that distorted proposals made by the Justice Department, at the behest of Congress, to deal with the coronavirus outbreak — specifically, with how the surge of infections and social-distancing protocols have complicated the capacity of federal courts to function as usual. (I elaborated on the same topic in this column.)


As a follow-up, it seems worth looking into the current state of play. I am happy to report that the courts are open, at least for essential business, at both the federal and state level, even in New York, where COVID-19 is taking its worst toll nationally. (See notices from the New York State courts, and the federal courts in the Southern and Eastern Districts of New York, as well as the Second Circuit federal appeals court).

To be sure, activities are scaled back significantly. Virtually everything that is unrelated to specific cases is on hold. As for the progress of filed cases, both criminal and civil, many proceedings have been postponed, and tele-conferences have replaced in-court conferences and oral arguments. For the most part, evidentiary hearings and jury trials, which as a practical matter have to take place in court, are not being convened — and will not proceed until the need for extreme distancing has eased. Jury trials that were underway but uncompleted before the preventive measures were imposed have been suspended.

Grand-jury proceedings are also temporarily adjourned. This means that cases cannot be indicted at the moment. That should be a problem only in investigations involving crimes that are nearing the statute-of-limitations deadline (a tiny fraction of cases), or in cases where grand-jury compulsion is needed to secure the testimony of an essential witness (though prosecutors and government agents can often figure out alternative ways to get such information).


Note that the vast majority of criminal cases are resolved by guilty plea (or some form of diversion in which charges are dismissed). This includes many cases in which defendants, who have been arrested on a complaint (rather than an indictment), negotiate a plea agreement without ever being indicted. (In such cases, defendants waive indictment and plead guilty to what’s called a criminal information, filed by the prosecutor.) Nothing about the ongoing emergency prevents plea negotiations from taking place.


The same is true of civil cases. The vast majority of them are settled without trial. Nothing about the coronavirus emergency stops discovery from proceeding. Social-distancing protocols may complicate depositions a bit but should not prevent them from happening.

Here is the most important thing: The courts are processing arrests and entertaining emergency applications in both civil and criminal cases. If there is some contingency that has to be addressed in the here and now, judges are available to do that.


I raise this because some have suggested that the social distancing and quarantine conditions that some state and local authorities have imposed are, in effect, the establishment of martial law. That is not true.


The courts are not closed. They are operating. People whose rights are arguably being violated by the restrictions that have been imposed, or by the Draconian manner in which those restrictions are sometimes being enforced, have the ability to challenge them in court. People who claim that federal or state governments are wrongly interfering with the rights of citizens to travel interstate (which I wrote about Sunday), or that Americans are wrongly being prevented from reentering the United States (a controversy that is brewing on cruise ships off the coast of Florida), will have access to the judicial process.

I am not being Pollyanna here. Emergency conditions do not lend themselves to sober deliberation. In any public-safety crisis, government officials occasionally go too far when it comes to restrictions. And we’ve seen disturbing reports of potentially politicized zeal in how state and local governments enforce restrictions — e.g., targeting religious services (including funerals) for violating stay-at-home directives, designating gun shops as “non-essential” businesses that must cease operations, and so on. We are in an environment in which there is apt to be more abuse of state power than usual and fewer available court resources to intervene on behalf of those whose rights have been violated.


Nevertheless, less available is different from unavailable. The courts are open and functioning.