Federal Courts May Be Able To Receive Filings 24/7, But There Is No Expectation To Review Unanticipated Filings Overnight
In Trump v. CASA, Justice Kavanaugh extolled the power of the Supreme Court as a supreme institution. In the process, he took a not-so-subtle shot at the inferior courts:
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”).
When I read this passage, I suspected it was a response to Judge Ho’s concurrence in AARP v. Trump. Jon Adler read it the same way.
I first saw this statutory argument made by Adam Unikowsky. But I’m not sure it works.
First, as a threshold matter, the statute is limited to filing papers, not for the court to review or rule on those papers. Congress has established the Civil Justice Reform Act which tracks how many motions are pending for longer than six months. But there is no congressional deadline to actually decide cases.
Second, we should determine the original meaning of the statute when it was enacted. A version of this statute was passed back in 1948 (62 Stat. 907). Another version was passed in 1963 (77 Stat. 248). At either time, it would have been impossible to file papers overnight, unless special arrange
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