WASHINGTON — The US Supreme Court justices could get their first shot of the coronavirus vaccine as early as this week. Other judges, like most Americans, are settling in for a wait.
The US justice system never paused for the pandemic. Federal and state courts scaled back in-person operations to minimize exposure risk — in high-volume courthouses, thousands of people cycled through daily before the pandemic — but they couldn’t go fully remote or stop functioning altogether. Delays in jury trials have kept defendants in criminal cases stuck behind bars, and judges and lawyers have feared a pandemic justice gap as operations shifted online.
Since the Food and Drug Administration approved the Pfizer coronavirus vaccine on Dec. 11, federal chief judges have mounted a letter-writing campaign to make sure state officials don’t forget about them as decisions are made about vaccine priority lists. The federal judiciary has an administrative arm in Washington, but it can’t centrally arrange for judges and staff across the country to get vaccinated — just one of a long list of complexities that states now have to contend with as they craft vaccination plans.
This means federal judges are appealing directly to state authorities, along with other state agencies and private industries. The chief judges of Wisconsin’s federal district courts wrote to Gov. Tony Evers on Dec. 16 to ask that the court staff “be deemed essential and granted the same priority as our colleagues in the state court system.” They didn’t ask to be included in a specific priority tier and made a point of saying they weren’t trying to skip the line.
“We write to ask that you and state and county public health officials consider the needs of the federal judiciary in establishing priorities for COVID-19 vaccination,” the Wisconsin judges wrote. “We seek no special treatment, but the federal judiciary has no means to provide vaccination to any of our employees. Any vaccination for us will come through state programs. Hence our appeal to you.”
Some senior government officials in Washington are already receiving the vaccine as part of government continuity plans — Vice President Mike Pence, Senate Majority Leader Mitch McConnell, and House Speaker Nancy Pelosi were among the first to get shots last week. A spokesperson for the US Supreme Court confirmed Friday that Congress’s Office of the Attending Physician had told the court that the justices — who have been operating remotely and hearing arguments by teleconference during the pandemic — were eligible to get vaccinated right away as well.
The rest of the federal judiciary won’t get the same priority status. Each federal court has been in charge of deciding how to operate during the pandemic. That decentralized structure extends into figuring out how to get judges and staff vaccinated with an eye to resuming more normal, in-person operations in 2021.
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The director of the Administrative Office of the US Courts, James Duff, urged the Centers for Disease Control and Prevention to include the federal judiciary in its recommendations for the “1b” group, the next priority category for vaccinations after healthcare workers, according to a Dec. 18 memo obtained by BuzzFeed News. A CDC advisory committee on Sunday adopted a set of recommendations that put “frontline essential workers” as well as people over age 75 in 1b — a group that includes police and firefighters, teachers, and grocery store workers — and “legal” in the category after that, 1c.
Ultimately it’s up to states to decide how to roll out the vaccine to residents, a point that Duff emphasized to judges in the Dec. 18 memo urging them to make contact with state health officials. He wrote that it was “essential that this outreach occur within your states as soon as possible.”
Chief Judge Lee Rosenthal of the Southern District of Texas said the chief judges of Texas’s four district courts wrote to Gov. Greg Abbott on Dec. 11 to ask him to consider making the courts a priority in the state’s vaccine plan. Rosenthal’s courthouse in Houston is open, but the court has suspended jury trials during the pandemic. Judges have been handling cases remotely as much as possible, but that’s not possible for all court operations, she said.
“Many of our judiciary employees deal directly with people who are quite likely to be exposed to or infected with COVID, such as our probation and pretrial services officers who deal one-on-one with defendants on bond, pretrial or on post-trial supervised release, or in custody,” Rosenthal said. “It’s trying to get our people protected but not at the expense of people who are even more exposed.”
Chief Judge Pamela Pepper of the Eastern District of Wisconsin said that in writing to the governor, she and her Western District counterpart tried to emphasize the dozens of court staff who have regular, face-to-face contact with defendants in criminal cases, as well as the fact that judges and court staff also “can’t seal ourselves in a bubble.”
In Washington, DC, the chief judges of the local and federal courts sent a joint letter to Mayor Muriel Bowser on Dec. 15 asking to be included in the city’s 1b phase. They estimated needing vaccine doses for approximately 2,000 judges and essential employees and noted that the mayor’s office and the Department of Homeland Security had classified judges, lawyers, and court staff as “essential” during the pandemic.
“The responsibilities of our local and federal courts to protect the constitutional and District of Columbia and federal statutory rights of litigants in criminal, civil, family and probate matters and to maintain the rule of law and public safety in our Nation’s Capital, have required, and continue to require that the Courts remain open during the COVID-19 pandemic,” the chief judges wrote.
Chief Judge Sidney Thomas of the US Court of Appeals for the 9th Circuit wrote to California Gov. Gavin Newsom to ask for consideration for federal judges and court staff. In a statement to BuzzFeed News, he said that they recognized that “there are higher priority groups,” but hoped Newsom would support including the federal courts in the “early priority phase.”
“It has been necessary to postpone thousands of court cases, creating a long backlog, with many defendants now confined in local jails for over a year awaiting trials that we are unable to firmly schedule. Maintaining this balance is and will remain nearly impossible until our employees are vaccinated,” Thomas said. “In the interest of justice, to continue our efforts to give those charged their right to a speedy trial, and to give judiciary employees a healthy workplace, it is my hope that Governor Newsom will facilitate inoculation of Federal Court employees at the earliest possible stage in the vaccine rollout.”
Federal public defenders in California, meanwhile, are preparing a separate letter to Newsom with their own ask to especially prioritize vaccinating inmates and the lawyers who work directly with them. Heather Williams, the head of the federal defender office for the Eastern District of California, said that because inmates can’t follow social distancing and other pandemic guidelines like the general public — and since it’s not clear that the vaccine can stop people from getting infected in the first place and spreading the disease — taking care of that population and the people who come into contact with them should be high on the list.
“We are not essential to the degree that people who make sure we have power and water, and teachers” are essential, Williams said. “But we still are essential in that we have a constitutional function that has to happen and has to happen in a really timely manner.”