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Stranger
“Fuck you, I’m judging!”
This.
Whatever practical problems might result, the authority of the judges to exercise their functions is undiminished by Congress failing to provide courthouses, staff, office equipment, etc. So you could have, say, antifascist states willing to provide facilities to the federal courts, or even private groups of citizens. There are plenty of historical examples where competing groups are claiming legitimacy and one of the groups operates, or purports to operate, with limited or no taxpayer funding.
For example, during the war of independence in Ireland, the (elected, but unpaid) revolutionary legislature established a court system whose officials were also unpaid that operated in whatever premises, and with whatever staff, it could muster. The system was patchy and far from perfect, but it worked — cases were brought, judgments were given, appeals were heard, etc.
If it came to it, you could have something analogous in the US — if Congress attempts to crippple the federal courts by not resourcing their operations, their constitutional authority and constitutional legitimacy as courts is unaffected, and if they can obtain resources from elsewhere then they can do their stuff. And I think they would be able to obtain a non-trivial quantity of resources from elsewhere.
One of the first American courtrooms in San Diego, CA was located inside a private residence because the city lacked funds to build one itself. It’s now a museum. I went there on a field trip when I was a kid.
Whoa. That’s a pretty big if.
We’re getting ahead of ourselves here. Let’s not lose sight of the fact that Congress isn’t doing any of this, it’s Trump on his own while Congress sits on its hands. 
If we got to the point where Congress was actually voting and taking official steps to cripple the federal court system, then we would be in really deep doo-doo.
I think it is highly likely that the courts/judges/Supreme Court would find that defunding the judicial branch would be unconstitutional as a violation of the separation of powers. But we are already at a point where the administration is ignoring court orders, so the question is whether this hypothetical Congress is similarly lawless.
The administration doesn’t actually even need Congress to defund the judicial branch if they want to. It is executive branch officials who distribute the funds allocated by Congress. So you just need Trump to tell those officials not to distribute funds to the judicial branch. He already is using this tactic, or threats of it, to bully universities and state governments. So if he wants to, he could cut off any amount of funding he wants. He could stop paying any judges he wants. It doesn’t matter that the constitution requires Article III judges to be paid without a reduction in salary.
Well, they’re not taking 'official steps", but at least one obscure congressman* is “officially speculating” about such things.
*Sarcasm.
Sure. But the issue raised in this thread is what would happen if Congresss were to do this. Check out the thread title and the first post.
Couldn’t the Senate just stop approving judicial appointments? No hearings, no votes and eventually there won’t be any Federal judges at the District Court level.
Of course, that would likely take years but it seems like an easy way to grind things to a halt.
For the OP’s hypothetical, it doesn’t really matter whether it’s the legislative or executive branch that takes positive action to defund the judicial branch, since the result is the same. Couldn’t Trump impound the judiciary’s money the same way he’s impounded money that Congress had allocated to various executive-branch departments? Yes, it may be illegal for him to do so, but if Congress continues to sit on its hands, then it’s effectively complicit.
SCOTUS could meet somewhere (Roberts’s house?) and order the Treasury to fund the courts. Then Treasury would comply, or we would become a more complete dictatorship than we had been before.
The Supremes might not exactly do this, but would try something like it.
I know, they now only rule on cases. In extremis, this would change. It is their job to support and defend the Constitution.
I feel you are very mistaken. If SCOTUS were to issue an order to Treasury to fund the courts, why would Treasury do so? The Trump stooge who is Sec. of the Treasury would stop the disbursement on orders from DJT. Congress would do nothing.
And how exactly would SCOTUS enforce their order given they have no enforcement arm?
This is the issue.
Could Congress kill the judiciary?
Probably, but the judiciary might win the battle if Treasury employees are sure Trump is a lame duck.
I’m a big believer in polls. If Trump is at 40 percent approval, things will play out differently than I he is at 25 percent approval and Democrats are poling well.
Unfortunately, after the so-called Liberation Day approval polling drop, Trump’s numbers have stabilized. This may be because Kilmar Abrego Garcia didn’t not turn out to be the squeaky clean sympathetic test case we need. There will be others.
I don’t get your reasoning. The Sec. of the Treasury is a Trump toady. There are no “Treasury employees” who would be able to act independently to fund the judiciary. If they did it would be instantly reversed by the SOT and the person(s) responsible would be escorted from the building.
Polls are meaningless here. Trump appointees are in charge of all federal departments and major agencies, and with only a few specific exceptions they have plenary authority to suspend or dismiss employees who do not follow orders. If Scott Bessent refuses to allocate funding to the Department of Justice, or Pam Bondi directs funding away from federal courts, individual employees cannot do anything to reverse that within their purview as subordinates. The Congress could, of course, assert their power by using the threat or actuality of impeachment and removal for “high crimes and misdemeanors” but I’ll believe that the Republicans dominating both houses have changed their spots when I see evidence of it.
Trump has already spoken about serving a third term repeatedly and with great assurance of his sincerity. He knows (I assume) that it is a legal and practical impossibility that enough states will agree to list him on the ballot to be re-elected notwithstanding the 22nd Amendment which would prevent him from being certified. So the conclusion is that he no longer cares about polls or indeed, elections; he simply intends to remain in office as he attempted to do in 2021. Will Republicans heed polls and stand up to him this time? Again, I am waiting for the mythical changing of fur patterns before buying into that projection.
Stranger
I shouldn’t have gone down this hypothetical rathole.
There is a very strong tendency, in dictatorships, to retain the empty forms of legalistic democracy, including courthouses with supposed judges and supporting employees. The details of how that might happen are hard to know in advance.
I just want to be clear that my question was:
If Congress were to not fund the judiciary in the budget, meaning no money for courthouses, IT, copiers, etc, which as far as I know aren’t spelled out in the constitution, would they be able to effectively kill the judiciary without actually doing something unconstitutional.
I’m not asking about scenarios in which the President (or Congress) does something unconstitutional and then what happens. Although, as I have stated before I think natural conversations meander and I’m not opposed to off topics and tangents. So I’m not criticizing this discussion, just making clear what I wanted to know.
The U.S. Constitution is unusually short. So a lot is treated as implied. The Constitution does imply that there is going to be a judicial system with courts leading up to the Supreme Court.
The Constituiton gives Congress the right to “ordain and establish” “inferior courts.” It doesn’t explicitly give Congress the right to disestablish inferior courts. Perhaps no one would object if Congress disestablished an inferior court because the population of that district had radically declined. But to disestablish inferior courts giving cost as an excuse, but really to reduce access to justice – I don’t think that’s constitutional. And it is unlikely to get past SCOTUS unless MAGA gets nine Alitos and Thomases in there. Maybe not even then.
They only need five.
Re last post, yes, I should have said five. But I think the hyperliteralist argument – that Congress has no constitutional right to disestablish inferior courts – would have some weight, at least with right wing clerks who want to become federal judges. As for the right wing judges themselves, they would dislike the presumed increased workload.