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:
