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June 11, 2024 Feature

Pandemic Policymaking in State Supreme Courts: Implications for the Administration of Justice

Alyx Mark

Amid the unprecedented challenges brought about by the COVID-19 pandemic, state court leaders found themselves confronted with the daunting task of effectively transitioning the business of courts to the remote environment. High courts’ choices during the pandemic raise critical questions about the direction of policy change. At first look, it might seem that state supreme courts, which retain control over the administration of their branches, would maintain and assert control. However, this was far from the practical experience of many state court systems. Throughout the pandemic, these high courts showcased a diversity of approaches to managing lower courts’ use of technology.

Some high courts opted for a more hands-off approach, permitting individual jurisdictions to explore procedural innovations at the local level. Others took a more centralized approach, presenting lower courts with a more limited set of options, including the specific technologies to be used, mandated through state-level rule changes. The pandemic became a litmus test for the different ways state high courts navigate their administrative landscapes.

The differences in high courts’ responses to the pandemic raise questions of both theoretical and practical interest. Theoretically, little is known about how state supreme courts’ constitutionally vested administrative powers connect to the practical tools they use to exert that authority. In other words, we lack a clear understanding of the mechanisms guiding supreme courts’ direction of court processes and operations. While scholars have studied the formal channels through which supreme courts influence administrative policies, and local courts’ reactions to them, the pandemic offers a unique opportunity to observe these dynamics on a larger scale.

The handling of procedural modifications during the pandemic also raises practical questions about the effectiveness of existing pathways for procedural change in state court systems. During the pandemic, state high courts paved the way for temporary policy changes via the removal of the traditional barriers to procedural and operational innovation. As a result, a variety of creative solutions emerged to address access-to-justice concerns posed by the need to limit in-person interactions. Some of these experiments—initially observed at the local level—have led to formal rule changes that will continue beyond the pandemic at the state level. Examples of formalization post-experimentation challenge the utility of obstacles court systems may have in place for testing innovations under “normal” circumstances—especially when considering the unmet legal needs of litigants that come about due to procedural hurdles.

This article presents descriptive findings on the variations in state supreme courts’ approaches to managing the transition to the remote environment during the pandemic. It also offers some possible explanations for these variations, acknowledging the challenges inherent in ascribing them to a particular feature of court administration, as well as some policy recommendations for the post-pandemic era.

Barriers to Cross-Jurisdictional Empirical Research Pre-pandemic

When procedural innovations were formally implemented in courts pre-pandemic, they usually occurred on a small scale, with single states, or clusters of jurisdictions within a state, piloting and then implementing a procedural change through routine—and often lengthy—approval processes. For example, courts experimented with alternative and substituted service of process methods before the pandemic, including service via social media or email. Another group of courts successfully implemented online exhibit submission systems. These innovations, and others like them, were not widespread before 2020. Thus, we’ve been limited in our ability to explain who gets to participate in the making of courts’ administrative policies because the glimpses of change occurred over narrow bands of activity. The recent flurry of COVID-driven policymaking gives us a novel opportunity to capture, describe, and explain patterns of procedural change—and who gets to participate in those processes—in American state courts. In the first year of the pandemic alone, state supreme courts collectively distributed nearly 3,000 administrative orders and pieces of guidance to facilitate pandemic response in their systems.

In addition to the complexities of studying these activities empirically, it is challenging to theorize about this behavior because of a split in scholarly focus regarding the study of the choices courts make. Historically, one body of work has examined the causes and consequences of decisions that are made in cases. Another focuses on the study of the choices that route those cases through the legal system, or a judiciary’s administrative choices. The former camp speaks in the language of hierarchies, emphasizing the top-down power of supreme courts in defining the boundaries of acceptable legal judgments for all other courts under their jurisdiction. The latter group tends to characterize many of the administrative decisions courts make as highly localized, stressing the role of the individual jurisdiction or judge in setting the rules by which they process cases. There is a clear role for the hierarchical explanation to play in directing procedural modification, but during the pandemic, jurisdiction-specific indicators also played a significant role in shaping these changes.

Sources and Styles of Authority in State Supreme Courts’ Pandemic Response

We can observe the hierarchy at work by looking at how state supreme courts attributed their authority to craft policy responses to the pandemic. In my review of administrative orders and other pieces of guidance distributed by state supreme courts in the first year of the pandemic, I found that most courts justified their use of administrative power by citing higher or binding concurrent authority.

In most states, supreme courts’ early orders offered justifications for their policies regarding lower court operations with citations to specific constitutional provisions (23 states) and the general powers vested in them by their state constitutions or through their inherent authority (11 states). These invocations of a higher authority were often made in quite broad terms, with courts attributing their emergency actions to their “available legal authority,” “constitutional superintending authority,” or “the general administrative and supervisory authority” of the supreme court given its constitutional role. Other significant sources of authority cited included permission granted by governors via executive order (4 states) and forms of statutory authority with specific delegations of emergency powers to chief justices, as well as emergency powers granted by the triggering of a state of emergency more generally (12 states).

Despite the widespread assertion of being empowered to exercise administrative supremacy, state high courts displayed a wide range of approaches to utilizing this power during the pandemic. While most supreme courts encouraged courts in their systems to adopt technology, the specific directives varied. One common approach involved the downward delegation of authority, where high courts suspended specific and blanket rules impeding lower courts’ technology-related procedural modifications. Another method aimed to consolidate high courts’ authority, with high courts advising that procedural and operational changes were acceptable within the boundaries of existing orders, laws, and constitutional protections or modifying specific rules themselves.

In states where supreme courts suspended rules, orders, or statutes that could hinder the development of locally applied procedural innovations utilizing technology, this was predominantly done through a comprehensive suspension of such provisions. Such a suspension allowed courts the freedom to innovate without being bound by the typical processes for changing their rules. This way, they could make operational changes without fear of potential conflicts with extant procedure while still adhering to statutory and constitutional obligations to parties. In a few states, supreme courts suspended policies for specific purposes (e.g., rules that limited the ability of courts to take oaths remotely). Finally, a handful of systems permitted lower courts to make procedural changes, provided that the proposed changes were formulated in consultation with supreme courts and took into consideration interjurisdictional consistency.

Other state supreme courts sought to maintain control through methods of centralizing authority to make such changes. In a few states, supreme courts permitted procedural and operational changes through processes that resembled those in place during nonemergency circumstances. In another group of states, supreme courts modified existing rules and orders to free up courts to work within the boundaries the supreme court had set through the centralized rule changes. Our review also revealed a final group of states whose early orders did not seem to provide clear language that would allow us to evaluate the degree of formal permission they had extended to courts in their systems to utilize technology.

Possible Causes of the Variation in Policy Strategies Used by State Supreme Courts

State supreme courts are granted the authority to administer their court systems based on myriad higher and binding concurrent sources of law, but they wield this power in different ways. Why did some courts consolidate their authority during the pandemic while others dispersed it throughout their systems? These differences may be attributable to the power that state-level actors can exert in practice: While supreme courts may retain constitutional or statutory authority to manage court operations, they may lack the practical tools that would permit them to carry out that authority. In other words, supreme courts and their statewide administrative apparatuses may not have the ability to dictate how lower courts would transition to the remote environment. Some systems’ decentralized administrative structures empower lower courts to make choices about information technology usage, budgeting, and purchasing—all of which impact a court’s ability to “go remote.” Furthermore, state judiciaries are funded by a variety of sources, influencing their ability to make independent choices.

That said, it is challenging—if not impossible—to pinpoint the specific aspects of a court system’s organizational structure or its relations to other institutions that contribute to variations in how supreme courts perform their administrative power. But we can observe differences in how these systems distribute the practical authority required to direct these policy choices. In 2016, the National Center for State Courts (NCSC) released data from the State Court Organization survey that provided insights into state court administrators’ perceptions of the level of authority state-level actors had over the areas of policy most relevant to this study. This survey was the last iteration to capture such perceptions in this way. The NCSC study found that, of the 43 state court administrators responding, only 19 reported that state-level actors had full control over information technology—in the remaining 24, they reported sharing IT responsibilities with lower courts. In 6 states, central administrators reported having no control over budget preparation or purchasing, whereas only 11 state administrators reported having total control over these two administrative functions. In 22 states, state-level administrators reported that they did not have total control over any of these three areas, either sharing responsibilities with lower courts or having no authority over them whatsoever.

In addition to lacking total control over IT or the mechanisms to allocate funding and purchase necessary equipment, state court systems vary in their level of budgetary independence. They may also be operating without the resources necessary to adequately serve their branch’s needs. In some states, court budgets are wholly managed through legislative processes (i.e., the system submits a budget to the legislature to consider and approve). In others, courts fund some of their operations through the independent collection of fines and fees (i.e., the system retains these funds and does not submit them to a state general fund for redistribution). The funding equation may be even more complicated still: Courts may have budgets that come from some combination of state appropriations, fines and fees, and funds from the local governments in whose jurisdictions these courts are located. Additional challenges with multiple funding streams include the level of administrative distance lower courts perceive from their central administrators and high court. In other words, if individual jurisdictions perceive themselves as possessing greater independence from their state-level counterparts, supreme courts may exercise more caution in issuing policy directives that they are unable to effectively enforce.

Assessing the Value of the Processes Underlying Operational and Procedural Change

Desirable policy outcomes may result when state supreme courts lack the resources or power to centralize their control and strictly oversee lower court operations. The pandemic has put on display the vast inter- and intra-state disparities in resources available to courts. Many courthouses across the country simply weren’t prepared with the infrastructure necessary to jump into a virtual world—and many still lack the capacity to fully adapt to a remote or hybrid court environment. Mandates from some state supreme courts may not work simply because courts are unable to adopt the technologies they need to meet those demands. Dictates may also signal to lower courts that they are not trusted partners, even though they are likely best suited to understand how to respond to conditions on the ground.

On the other hand, when state supreme courts explicitly acknowledge that lower courts have the space to innovate, it gives these courts the opportunity to experiment within their means and local cultures. State supreme courts should consider ways to institutionalize pathways to local-level experimentation. Trial courts may be in the best position to experiment with procedural methods to improve access to justice for litigants of modest means, people who represent themselves, individuals who do not speak English as a primary language, and litigants with disabilities. Courts may discover ways to improve novel ideas that are already taking root, such as conducting remote trials, addressing questions of implicit bias, and consolidating common issues for trial. These are just some of the areas ripe for experimentation in what can become local judicial laboratories across the country. Their findings and results may generate benefits that bubble up to the state level.

Under-resourced courts may seek out external funding for innovative projects that a state may not have otherwise been able to support. A permissive structure also may lead to the policy result that a state supreme court may have been seeking in the first place. For example, we observed instances during the pandemic where state supreme courts offered monetary resources and other forms of support to lower courts in exchange for adopting their preferred technologies or ways of using processes that were already available. The successful design and implementation of process changes have led to the consideration and adoption of amendments to extant formal procedures. For example, the Florida Supreme Court has implemented amendments allowing for “permanent and broader authorization for the remote conduct of certain court proceedings.” In Michigan, various amendments and modifications were made to its Court Rules to accommodate remote fee waiver requests and utilize videoconferencing technologies more extensively.

Many policy changes that courts made improved their user-friendliness—in terms of making it both more convenient for people to attend hearings and easier to participate for those who were previously unable to fully engage in an in-person setting. In terms of convenience, studies now suggest that permitting remote appearances at hearings has significantly decreased default judgments in high-volume dockets such as eviction. In terms of accessibility, remote hearing guides have advocated for virtual hearing rooms to be equipped with “closed captioning, keyboard accessibility, automatic transcripts, and screen reader support, as a minimum,” all of which offer a more inclusive courtroom experience for those with disabilities. The vast majority of these innovations may have never happened—or would not have happened as quickly—without the rules suspensions and permissive regulatory structures granted by state court systems to their individual jurisdictions during the pandemic. To be clear: This article is not advocating for a “hands-off” regulatory environment for state courts. What it does advocate is that courts design review processes that ensure the most vulnerable among us are not left behind in the wake of technological advancements.

But these observations do challenge the utility of the methods court systems have traditionally used to manage operational and procedural changes. Many courts have been engaged in a process of reflecting on “what worked” and “what didn’t work” during the pandemic—but much of this retrospection focuses on the specific operational changes that they implemented in their systems. Courts should also use this post-pandemic period as an opportunity to reconsider and reform the steps that traditionally underlie the proposal, approval, and implementation of these types of innovations.

Through the lens of the pandemic, we can learn quite a bit about the administration of America’s state courts. We can also use this moment as an opportunity to broaden how court administrative rules facilitate procedural experimentation that leverages technology to better meet the needs of court users.

The author wishes to thank Anna Carpenter, Hon. Anthony Mohr (Ret.), Colleen Shanahan, and Zach Zarnow for comments on earlier versions of this article; Andrew Simard, Armando Alvarez, Juliet Dale, Betsy Froiland, and the Wesleyan University State Courts and COVID Project’s data-gathering team for their research assistance; and the National Science Foundation, Pew Charitable Trusts, and the American Association for University Women for their generous support of this research.

    Alyx Mark

    Wesleyan University

    Alyx Mark is an assistant professor of government at Wesleyan University and an affiliated scholar of the American Bar Foundation. She conducts research on institutional influences on legal elites’ behavior and access to justice.

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