The Fiscal Cliff Threatens Court Access

By Laura Abel, Deputy Director of the National Center for Access to Justice at Cardozo Law School

If Congress leads the country over the “fiscal cliff,” people are going to have a tough time using the courts to protect their most basic rights. Pretty much everyone agrees that imposing across-the-board cuts is a bad way to make public policy. When the cuts affect the Third Branch of government, they tread on dangerous constitutional ground.

The fiscal cliff is the popular name for the package of federal budget cuts and tax increases that Congress agreed to in the Budget Control Act of 2011. The idea at the time was that a committee, optimistically dubbed the “supercommittee,” would come up with a long-term plan to reduce the federal deficit before the package took effect. But the supercommittee was unable to come up with a solution. Now, most federal agencies face budget cuts of as much as 9% on January 1, unless Congress can agree on an alternative plan.

The federal courts have warned that the cuts “would have a devastating and long-lasting impact on the federal courts and the administration of justice in this country.” Even without the fiscal cliff, the federal judiciary is a lean operation. In the past year alone, 1,000 court staff positions have been cut. Judge Julia S. Gibbons has testified before Congress that additional Budget Control Act cuts would limit the ability of court clerks to help members of the public with court filings. This would make the federal courts more inaccessible than ever to “pro se” litigants seeking to enforce their civil rights or file for bankruptcy. Staff shortages would also result in significant delays in processing cases, providing an unfortunate demonstration of the principle that “justice delayed is justice denied.”

The so-called budget cuts will cost the taxpayers far more money in the long run. Judge Gibbons warns that the courts will have to furlough public defenders and reduce pretrial supervision services for low-risk offenders. The likely result is that more defendants will spend more time in prison awaiting trial, driving up prison costs.

The state courts will become less accessible, too. As the American Bar Association has documented, most state courts have seen their budgets slashed over the past few years as a result of the economic downturn. Around the country, courts are cutting their hours, delaying trials, and laying off staff. The Act would wreak further havoc by cutting funding that the courts use to handle domestic violence cases and run drug courts. The losers will be the people seeking restraining orders and communities suffering from drug violence.

Additional cuts to the federal Legal Services Corporation will make justice even harder to come by for millions of people. LSC funds civil legal aid lawyers who represent low-income people in cases concerning their most basic human needs: evictions, mortgage foreclosures, child custody, domestic violence, to name just a few. Already, tight budgets force them to turn away at least half the people who seek help. In some housing courts, virtually all tenants facing eviction appear without a lawyer. The Act would make it even harder for people to find a lawyer to help them keep their home and children, or to protect their safety.

There are many reasons for Congress to step back from the fiscal cliff. Essential federal funding for education, health and social services is at risk. Cutting these programs haphazardly, as the Act does, is bad policy. But the threat to our nation’s courts goes deeper. Federal courts are the Third Branch of government; a Congress that deprives them of the funding they need to operate is treading on dangerous constitutional territory. And the Constitution provides a right of access to all courts.  By eliminating the court services and legal aid lawyers that people need to obtain access to justice, Congress risks provoking both a constitutional crisis and a human crisis.