Courts Unmasked

The COVID-19 pandemic changed the work practices of nearly every industry around the globe, forcing institutions to quickly adapt to the evolving public health emergency. The state court systems in the United States—from trial courts to state supreme courts—were no exception. In response to the crisis, courts were forced to make dramatic changes to the way they processed cases. The alterations ranged from selecting which types of cases should be prioritized or delayed to choices about which standards for filing documents and appearing at hearings could be relaxed. Petitions for emergency protective orders sped through the courts out of necessity, while small claims were processed far more slowly. Courts also allowed digital filings and video and phone call appearances without special permission. As Alyx Mark shows, COVID acted as an accelerant for procedural change and laid bare the different approaches to administrative decision-making that characterize the state courts. The distinctive and unifying case study created by the pandemic witnessed decisions that challenge prevailing explanations of how power manifests and process operates in state judiciaries.

The legal administrative changes brought significant differences to light in how state court systems design and implement policies that affect the administration of justice, revealing the degree to which such decisions are centralized. In states like Kentucky and Massachusetts, for example, high courts tended to craft orders that gave lower courts little room to make choices about their operations at the local level, reflective of these systems’ top-down approaches to court administration. Administrative orders distributed by Kentucky’s trial courts thus instructed judges to conduct all proceedings remotely, specifically attributing this policy choice to provisions that were made explicit in their supreme court’s orders.

In contrast, other supreme courts’ orders reflected the more diffuse nature of administrative power in their systems. Lower courts in Florida and Missouri interpreted their supreme courts’ orders to mean they were empowered to develop the administrative policies they deemed most appropriate. Given the discretion afforded to them, lower courts in Florida interpreted their high court’s wishes liberally, with their administrative orders offering judges the opportunity to make decisions about the appropriateness of remote hearings at the individual level—permitting judges to determine when, if, or wherever such hearings would be possible or practicable. Exploring these differences, which COVID made visible in a unique way, Mark provides a more comprehensive understanding of the role that the structure of administrative institutions plays in designing, implementing, and sustaining procedural change.

Informed by an extensive data collection effort—encompassing administrative orders disseminated across state court hierarchies, as well as insights from nearly sixty interviews with elite court actors who participated in constructing and implementing these orders during the pandemic—Courts Unmasked uses the COVID-19 pandemic as the vehicle for exposing and unpacking the realities of power and process in state civil courts and what this might mean for the future of civil justice reform.