The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Federal Courts Treating Vaccinated and Unvaccinated Litigants Differently

In the 10th Circuit, vaccinated attorneys can argue in person. Unvaccinated attorneys must seek leave to appear via video.


During the early days of the pandemic, most federal courts shut down, and moved all proceedings online. In the past few months, many courts have opened up, and began to hold jury trials. Even if courthouse require mask mandates, individual judges had the option to waive those requirements for jury trials. (And I am reliably informed that some judges have given litigants and jurors that discretion). Now with the Delta surge, courts are imposing new restrictions.

Last week, the Tenth Circuit barred unvaccinated people from entering the courthouse in Denver. They also cannot go to the clerk's office. They must drop off files in a dropbox near the entrance. And, unvaccinated attorneys must seek leave of court to argue a case via video. Presumably, that leave can be denied. This policy does not seem to have any exceptions for disabilities. There are some people who cannot receive the vaccine. For example, those with severe allergic reactions to both the mRNA and J&J vaccines. If an attorney falls into that category, he or she would be unable to represent clients. And there is no guarantee leave would be granted.

Moreover, there is no religious exemption. I think the federal courts are subject to RFRA, which imposes a heightened standard for the free exercise of religion. Attorneys who seek to represent their clients, and have religious objections to the vaccine, will be out of luck.

This policy would also affect law clerks, who need to enter the building to do their jobs. Any law clerks who are unvaccinated will be in a very tough spot. I've heard, anecdotally, that some judges are asking about vaccine status during the clerkship screening process.

This policy likely applies to criminal defendants as well. I understand some courts are imposing vaccination as a condition of bail. I suppose the courts can force a person to be vaccinated to even attend a trial or other courtroom proceeding. Though I'm not sure how a person who needs to be arraigned can get fully vaccinated in time. Those arraignments may go back to Zoom. I need to give that question some more thought. But the absence of any disability or religious-based exemption is problematic.

The Eleventh Circuit has adopted a more permissive policy. Vaccinated people can enter the courthouse in Atlanta. Unvaccinated people must provide a negative COVID-test. And unvaccinated employees must provide a least one negative COVID test per week. The U.S. District Court for the Southern District of Texas requires COVID testing twice a week for unvaccinated employees.  In the Western District of Texas, all jury trials were suspended until October.

The Fourth Circuit is avoiding the issue by sticking with Zoom arguments.

I haven't had a chance to check all circuits. These courts were featured in an AP article.