The Volokh Conspiracy
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Federal Courts May Not Be Denny's, But They Are Open 24/7/365
Justice Kavanaugh's Trump v. CASA concurrence appears to reply to Judge Ho.
On remand in A.A.R.P. v. Trump, Judge James Ho of the U.S. Court of Appeals for the Fifth Circuit suggested it was unreasonable to expect federal district courts to be open and available to respond to emergency pleadings at all hours of the night. He wrote:
We seem to have forgotten that this is a district court—not a Denny's. This is the first time I've ever heard anyone suggest that district judges have a duty to check their dockets at all hours of the night, just in case a party decides to file a motion. If this is going to become the norm, then we should say so: District judges are hereby expected to be available 24 hours a day—and the Judicial Conference of the United States and the Administrative Office of the U.S. Courts should secure from Congress the resources and staffing necessary to ensure 24-hour operations in every district court across the country.
Whether or not the Judicial Conference and Administrative Office have provided the relevant resources, federal law already requires the federal courts to be open for business around the clock. Justice Kavanaugh makes this point in his Trump v. CASA concurrence, in which he writes:
Some might object that this Court is not well equipped to make those significant decisions—namely, decisions about the interim status of a major new federal statute or executive action—on an expedited basis. But district courts and courts of appeals are likewise not perfectly equipped to make expedited preliminary judgments on important matters of this kind. Yet they have to do so, and so do we. By law, federal courts are open and can receive and review applications for relief 24/7/365. See 28 U. S. C. §452 ("All courts of the United States shall be deemed always open for the purpose of filing proper papers . . . and making motions and orders").
As it happens, judges (and justices) are often expected to be available throughout the night, such as when there is a pending execution and last-minute stay requests or other filings can be expected. Granting of such requests can also prompt middle-of-the-night responses (as occurred here). If such proceedings are expected in the context of capital sentences, it is not altogether clear why they should not be expected where the government is preparing to permanently remove someone from the United States and send them to a foreign prison, particularly if there are reasons to believe the government is racing to act before courts can intervene. Regardless, whether we should expect late-night proceedings in the context of deportation, federal law deems federal courts are "always open," even if most filings do not need to be considered on anything remotely approaching an expedited basis.
So while a district court may not be a Denny's, it is formally open to hear business 24/7/365.
