Litigating the Pandemic: Disaster Cascades in Court 9781512824827

Table of contents :
CONTENTS
Introduction
Chapter 1. What Are Disaster Cascades?
Chapter 2. Democratic Backsliding and Litigation
Chapter 3. Courts, Meaning, and Instrumental Effectiveness
Chapter 4. Tsunamis, Explosions, and Misdirecting Metaphors
Chapter 5. Government Authority, Civil Liberties, and Mass Incarceration
Conclusion: Courts and Accepting Loss in a Pandemic
Appendix: A Note on Data and Methods
Notes
References
Index
Acknowledgments

Citation preview

Litigating the Pandemic

CRITICAL STUDIES IN RISK AND DISASTER Series editors: Kim Fortun, Scott Gabriel Knowles, and Jacob A. C. Remes Critical Studies in Risk and Disaster explores how environmental, technological, and health risks are created, managed, and analyzed in different contexts. Global in scope and drawing on perspectives from multiple disciplines, volumes in the series examine the ways that planning, science, and technology are implicated in disasters. The series also engages public policy formation—including analysis of science, technology, and environmental policy as well as welfare, conflict resolution, and economic policy developments where relevant. A complete list of books in the series is available from the publisher.

LITIGATING THE PANDEMIC Disaster Cascades in Court

Susan M. Sterett

U N I V E R S I T Y O F P E N N S Y LVA N I A P R E S S PHIL ADELPHIA

Copyright © 2023 University of Pennsylvania Press All rights reserved. Except for brief quotations used for purposes of review or scholarly citation, none of this book may be reproduced in any form by any means without written permission from the publisher. Published by University of Pennsylvania Press Philadelphia, Pennsylvania 19104-­4112 www​.upenn​.edu​/pennpress Printed in the United States of America on acid-­free paper 10 9 8 7 6 5 4 3 2 1 Hardcover ISBN: 978-­1-­5128-­2483-­4 eBook ISBN: 978-­1-­5128-­2482-­7 A catalogue record for this book is available from the Library of Congress.

For Maya

CONTENTS

Introduction 1 Chapter 1. What Are Disaster Cascades?

15

Chapter 2. Democratic Backsliding and Litigation

43

Chapter 3. Courts, Meaning, and Instrumental Effectiveness

62

Chapter 4. Tsunamis, Explosions, and Misdirecting Metaphors

84

Chapter 5. Government Authority, Civil Liberties, and Mass Incarceration

128

Conclusion: Courts and Accepting Loss in a Pandemic

158

Appendix: A Note on Data and Methods

171

Notes 181 References

183

Index 211 Acknowledgments 215

Introduction

I

n July 2020, months into the COVID-­19 pandemic and shutdown orders, the Washington Post reported on landscape and construction workers in Florida. The state had deemed them essential, therefore they showed up for work (State of Florida, 2020b). Though they didn’t lose income, the workers were now at risk for infections that they could bring home. The number of infections soon rose in South Florida’s indigenous Guatemalan community as the virus spread through families, many of whom lived in multigenerational homes. The reported positivity rate for tests reached 30 percent (Sieff, 2020). Meanwhile, Congress had recently enacted the Families First Coronavirus Relief Act (FFCRA), and President Donald Trump had signed it into law on March 18, 2020. Although the new law provided for paid sick leave and employers were not allowed to inquire into immigration status before paying the bene­fit, undocumented people have long found it difficult to file claims about employment problems for fear of attracting unwanted attention from immigration officials (Menjivar and Abrego, 2012; Patler, Gleeson, and Schonlau, 2022). At the state level, Florida governor Ron DeSantis also issued executive orders taking widely used measures to protect the most vulnerable people, for example, advising the elderly and those with health impairments to stay home and recommending remote work for people who could do so (see, for example, State of Florida, 2020a). Another policy, though, had little to do with spread and more to do with imagining how to keep businesses that required people to work in person operating. In September 2020, Governor DeSantis also endorsed limiting liability for employers if employees became ill and might claim they became ill at work, arguing that a threat of liability was “hold[ing] the economy back” (Sexton, 2020). After the next legislative session in 2021, he signed a bill limiting liability for employers. In doing so, he was joining other governors who had issued executive orders in spring

2 Introduction

2020 limiting liability either in health care or for all employers (Lewis Brisbois, 2021). Why would liability be a high concern as the virus spread? Of all the problems officials faced in the pandemic—from widespread infections and growing numbers of deaths to closed schools and parents without child care—liability protection beyond what the law already afforded to businesses rapidly rose to the top of the list among Republican officials. In May 2020, on the floor of the U.S. Senate, some Republican senators argued that businesses needed to reopen, and to reopen they had to be protected from lawsuits, however unlikely those lawsuits would be. Indeed, there was a mismatch between those employees deemed essential, such as the Florida construction workers, and the likelihood of a lawsuit. Making a credible claim that one had gotten sick at work (instead of somewhere else) would have been hard to do, as large law firms surely recognized (e.g., Thibodeau, 2020). Moreover, even if they could prove they had contracted COVID-­19 at work, low-­wage workers would have been the least likely to be awarded enough money to make it worthwhile for a lawyer to take the case. On their websites, however, law firms echoed senators’ warnings and noted that even the “threat” of litigation was troubling (Gibson Dunn, 2020); so did the U.S. Chamber of Commerce (2021). Making sense of the early advocacy for liability protection requires contextualizing it within a timeline of the politics of litigation that long predated the pandemic. Limiting liability for injury was a long-­standing issue for conservative advocates. It condensed ideas about individual responsibility and morality and the costs of doing business that many years of advocacy had made resonant in the United States. This trend persisted in the pandemic. Congress could not enact limits to liability before the 2020 election other than for health care workers, and since it was a Republican initiative, Democratic majorities in Congress after the 2020 election made protection from lawsuits at the national level less likely. Advocates for expanding limits to liability therefore turned to the states. The states were a familiar venue for advocates of conservative legislation, including limiting liability. The conservative advocacy group the American Legislative Exchange Council (ALEC) had been active on liability politics in statehouses from the late 1980s onward, primarily by proposing model legislation (Hertel-­Fernandez, 2019: 25–26). Their model had led to many successes over the years. Revisiting liability was therefore a matter of going over familiar ground. It did not require a real threat or answering explanations of why there was unlikely to be much of a threat.

Introduction 3

Situating the Pandemic: Governing a Changing Climate Embedded in the risks the construction workers in Florida faced was a changing climate. They were tasked with building on lands subject to sea level rise from climate change (United States Global Change Research Program, 2018: ch. 11). In addition, U.S. national security officials and consensus elite research reports have concluded that climate change contributes to the destabilization of countries from which people flee, including Guatemala (National Research Council, 2013; American Security Project, 2019). People who had fled Guatemala were now working in Florida and vulnerable to the virus’s spread. These threads—climate change, climate migration, and the virus—cannot be disentangled. Sorting out connections, though, depends on a tolerance for extended timelines and processes that not everyone shares but that is critical to understanding governance in a changing climate. Governing in a changing climate will continue to work through the same set of actors, institutions, and issues that were mobilized in the pandemic. Disagreeing about what even count as problems—liability, workers’ and families’ safety, and, as we will see, public religious exercise—predated the pandemic and will persist after it. Contests over attribution, evidence, and priorities, such as economic activity and public health, open opportunities for actors to advocate in court because organizations that go to court or argue about liability in court had mobilized long before the pandemic. In the pandemic courts heard contests about legal authority, especially concerning civil rights and the failures of insurance claims. If governors, legislatures, and interest organizations can repurpose issues for the pandemic, they will continue to repurpose them for other climate-­related problems. Commentators hoped experts would persuade publics in the pandemic and that their expertise would have positive spillovers for believing reports about how people need to change what they do in a changing climate (New Yorker Politics and More Podcast, 2020). However, pandemic governance included disputing not only expertise but public health as a priority. Experts can reference the changing climate as a reason for pandemics, increasingly intense hurricanes, sea level rise, or migration to South Florida, and they do. Saying that a changing climate makes pandemics more likely, though, does not settle the origins of any one pandemic. Even if pandemics are more likely in a changing climate, examining one pandemic will allow anyone looking for a more limited cause to find one. The outbreak began in China, and attempted explanations cited either a leak from a lab or a jump from animals to people

4 Introduction

in a wet (fresh food) market in Wuhan. Ambiguity and uncertainty in a world already divided about how to describe problems, and the role of accident and blame, allowed different stories to proliferate. Sorting out the particulars took time (Cohen, 2021; Pekar et al., 2022; Worobey et al., 2022). In the United States during the pandemic, differences in priorities, skepticism about experts, and differences in how to analyze the problem all met with polarization around issues that followed identity. Polarizing around identity means that people choose positions on issues based on how they understand social identities, as the political scientist Liliana Mason has argued (Mason, 2018; see also Gadarian, Goodman, and Pepinsky, 2022). Opinion polls tracked partisan differences over mitigation efforts, such as wearing masks or closing public gathering places, and also differences over how much people were willing to limit their activity and mobility (Clinton et al., 2021; Gadarian, Goodman, and Pepinsky, 2022). Courts have been critical to politics in the United States, in more than one way. Some court cases track partisan cues. The conservative legal movement in the United States builds cases on the claim that practicing Christians are disadvantaged minorities, that restricting voting is critical to protecting the disadvantaged (Gorski and Perry, 2022), and that the courts can protect the rights of Christians (Southworth, 2008; Hollis-­Brusky and Parry, 2021). With or without actual cases in court, Republicans have advocated for liability limits for years. Other court cases address material losses: the businesses shut, the events canceled in the pandemic. In an election year, parties took cases contesting whether to adapt election administration in a pandemic. Contests in court over voting in a pandemic were one part of a resurgent authoritarianism around the world that predated the COVID-­19 outbreak and that accompanies the current polarization. The Republican Party has been extending control of multiple institutions without commanding an electoral majority across the country, partly by extending voting restrictions (Grumbach, 2022). In turn, ALEC, which quickly put together model legislation about liability in the pandemic, has also developed model legislation for the states to restrict access to voting (Hertel-­Fernandez, 2019). Historians of epidemics and disease have argued that disease has reshaped governing (Kudlick, 1996; Snowden, 2019); some maintain that disease outbreaks and other disasters contribute to molding more tightly regulated societies (Van Bavel et al., 2020). It is too early to tell how far COVID-­19 has reshaped or will reshape governing in the United States or elsewhere. In the context of the pandemic, these already existing partisan divisions facilitated disagreements

Introduction 5

about attribution and mitigation measures and whom to protect and how, many of which could go to court. Those who litigated complaints about mitigation measures could claim their rights as minorities subject to rights-­ violating orders. The opportunities, organizations with resources, and multiplicity of courts across the states allowed these disagreements to come to court. Partisanship enacted into policy increases the risks stemming from catastrophes (Leigh, 2021). How, though, can we integrate the risks people experience in a pandemic showing up to work for jobs that a governor has deemed essential with climate change, partisan political identity, and liability politics? Geoscientists have been urging that their studies more seriously consider how disasters such as earthquakes and mudslides interact, and have named the problems “disaster cascades.” The term organizes linked disasters in human systems. “Disaster cascade” aptly sums up the pandemic in a changing climate amid disputes over partisan identity and over controlling political institutions (see also Clark-­Ginsberg et al., 2021). Naming this complex a disaster cascade can make connections visible. In linking the problems of climate change, the pandemic, governance, and the courts, I work from the perspective of critical disaster studies, which argues that disasters are ways of imagining risks, with contests over power at their heart, which occur over much longer timelines than traditional definitions of disasters usually allow (Horowitz and Remes, 2021: 2–6; Tierney, 2006). A critical perspective on disasters turns away from the disaster managers’ understanding of disaster as a discrete event, confined in time and space. Such a limited perspective cuts off the view of long lead-­ins and long tails, or the conditions that create the disasters and the governance effects that flow from them (Horowitz and Remes, 2021: 5; Horowitz, 2020). By any account, the COVID-­19 pandemic challenged the definition of disasters as discrete; it spread around the world. As of 2022, public health officials talk about learning to live with it. Even so, it is an event governed via institutions with histories that created the conditions for its management and spread. Those institutions can change as disasters roll out. Understanding the pandemic requires describing these institutions; as historians Andy Horowitz and Jacob Remes argue, governance, time, and context are all necessary for analyzing COVID-­19 (Horowitz and Remes, 2021: 7–8). Stretching timelines and expanding context blur the sharp edges of a disaster defined as a discrete event. Stretching timelines and contexts also invite analyzing the roles of people other than the officials who appeared in national media as responsible

6 Introduction

for managing the pandemic. Stories about these missteps by public health and political officials have been widely and well told, and more are likely to emerge in the future (Lewis, 2021; Christakis, 2020; Kapucu and Moynihan, 2021). A spate of memoirs about the Donald Trump administration’s last year and books about his administration’s management of the pandemic (Abutaleb and Paletta, 2021; Slavitt, 2021; Gottlieb, 2021) center on the national government, not on the states that decided about essential workers and closures. New York governor Andrew Cuomo’s 2020 book amounted to a premature statement of success in managing the pandemic. It was published long before COVID-­19 cases had declined (Cuomo, 2020) and before he would resign in disgrace as the result of sexual harassment allegations, amid reports that he had deliberately understated the numbers of deaths in nursing homes. This book does not seek to replicate commentaries and critiques centering on national or public health officials. The careful attention already paid to stories about both allows a turn to other problems and tactics that promoted conflict and uncertainty during the same period. By turning to litigation, this book describes links between governing institutions and the pandemic; problems in one could amplify the other. What emerges from legal process can be patterned differently than when one begins with the president or a leading public health official.

Litigation as Governance in a Changing Climate In the United States, litigation is governance (Farhang, 2010).1 Litigation as a way of holding people responsible in the pandemic has spanned a range of fields, from far-­fetched lawsuits against China for the pandemic, to insurance, the power of governors to order closures, and concerns raised about liability. If climate change increases the risks of pandemics, then pandemic litigation is part of the context of litigating climate change. In the legal field, attention to how people litigate climate change has primarily centered on greenhouse gas–emitting businesses, including coal-fired power plants (Dillen, 2020) and other fossil fuel industries (Peel and Osofsky, 2015). People identifying as climate litigators work on cases that are intentionally environmental (Setzer and Vanhala, 2019). Yet limiting our understanding of climate change litigation to cases about greenhouse gas emissions misses the pervasiveness of climate-­ related litigation. As the legal scholar Kim Bouwer argues, all of litigation now happens in the context of climate change (Bouwer, 2018). Pandemic litigation

Introduction 7

has failures and fault lines that broaden the actors, legal provisions, and acts that are already part of climate litigation. When viewed as discrete events—a definition that critical disaster studies calls into question (Horowitz and Remes, 2021)—disasters in court theoretically link well with one court case. A lawsuit promises accountability for wrongdoing. The claim in a lawsuit is causal: an actor caused a particular harm and needs to remedy it, even if, on closer examination, the remedy is extremely unsatisfactory (Cassels, 1993; Fortun, 2001). Court cases promise accountability for those responsible for disaster and impose remedies from a position outside ordinary power relations. But in reality, court cases never occur from outside the systems of power they govern (Moore, 1978). Instead, the power dynamics that organize a disaster and its effects structure court cases and their meanings, and can in turn change as a result of the legal processes (Fortun, 2001). Following one causal case also vastly understates the actors involved, and who is responsible for what. No one causal agent is responsible for the spread of the virus among multigenerational households, or for the climate change health experts link it to, but closure orders, immigration, and state decisions about liability exemptions all include opportunities for lawsuits that attribute responsibility and advance material or ideological advantage for those suing. Governing with litigation includes everything from businesses contesting economic regulation to constitutional litigation. In this context, the pandemic offered opportunities to pursue longer-­term goals in court, well beyond any one case tied to one story about the disaster. This book tracks multiple fields in which pandemic measures brought litigation. They differ from the liability risks that senators and the Chamber of Commerce first warned of. They are not cases about liability for getting infected at work, but cases about insurance, and mitigation measures amid elections and contests over the free exercise of religion and getting people out of prison. All have a history, and a set of actors, that long predate the pandemic. For example, businesses complying with closure orders turned to the insurance they had purchased that protected them against “business interruptions,” the term insurance contracts used for closures due to disasters. The meaning of that term had long been contested, and the insurance industry had rewritten guidance on the matter after the 2003 SARS pandemic. They were often denied. Denials of coverage generated lawsuits, which we will explore in Chapter 4. Insurance industry representatives argued that the failures of these cases amid widespread need, and the anticipation of future pandemics and future need, meant that the United States

8 Introduction

needed a program underwriting business interruption insurance. The court cases filed accumulated into a ground for advocating a new program. In this way, litigation expands the actors that are considered part of pandemic governance beyond the president and the public health officials featured so prominently in news about the pandemic. Officials such as attorneys general or public defenders, and groups such as party committees or interest organizations, all take cases. Individuals who see themselves as harmed in ways the law prohibits take cases or threaten to do so. Lawsuits illuminate complex interactions. They don’t require that central government officials identify interactions, and no one official controls case filings. Instead, people with diverse problems file cases. Litigation organizes a number of problems, including cases about insurance, executive orders closing businesses or limiting public gatherings, and mask requirements. To exclude these problems from our discussion minimizes how a disaster can cascade not just through public health infrastructure but also through institutions organized to invite claims that contest markets, care, mutual responsibility, and morals in a changing climate. Many commentators center debates about the politics of litigation on the U.S. Supreme Court, particularly constitutional issues, thus turning public attention to that court as well. In the first year of the pandemic, the Supreme Court decided cases about religious practice and governors’ orders across the states. A religious official who wants to hold worship services but cannot, a schoolchild who claims a right to wear a mask with a religious message: these challenges are opportunities for religious litigation along American fault lines. The less visible litigation in the pandemic included more: prisoners living where the virus could spread rapidly through crowded cells, business owners whose insurance did not pay out during closures, regulations on voting, and maneuvering in state legislatures about litigation over liability for injuries. This litigation and images of it are the workday litigation in governing, even if they are sometimes remote from people’s experience. The dramatic controversies about religion and possibly voting grab attention; the very remoteness of symbols from everyday life confers some of their symbolic power. Other controversies grab pocketbooks, or threaten to, but many people experience the economic losses individually, and such policy decisions are less likely to resonate. Constitutional cases are particularly visible, amplified by the interest organizations that take them. These cases identified prominent public officials as actors, including governors. Governance also includes cases under state rules that are between businesses. They often appear in lower courts and

Introduction 9

include multiple insurance companies and differences in state rules. They are responsible for delivering real financial benefits or losses, but they are less likely to be part of the “political spectacle” (Edelman, 1985) of governing the pandemic in an electorate divided by partisanship. Litigation, and ideas about litigation, are a useful way of understanding pandemic governance and the amplification of problems across systems in a disaster cascade. Pandemic litigation is governance in a changing climate. The effects of a changing climate are wide-­ranging, and anticipating how they will ripple through institutions is difficult (McKibben, 2019). Exploring climate governance through the pandemic allows a way of seeing what kinds of problems it raises that are not necessarily first defined by media frames or individual opinions in surveys. Extending the timeline and the context reveals that the pandemic has been an opportunity for already mobilized interests to extend, contest, and consolidate their power through courts. In following cases filed in court, who has filed them, and what their histories are, this project relies on the framework of legal mobilization, or who brings law to bear (Vanhala, 2013). Legal rules are seldom self-­enforcing, and courts do not declare themselves without people asking them to. People have to have the wherewithal to claim that a legal rule has been violated and that they are the right person to bring the complaint to court. They can make claims for themselves as individuals, or as part of a movement. They can make claims for material benefits or for ideological affirmation. Turning to the cases filed and who brings them integrates multiple kinds of cases organized around one pandemic, which is unlikely the worst and certainly not the last opportunity to disagree about religion, or insurance. This book draws largely on the first six months of the pandemic, when everything was still in flux. After that, the fault lines were well established. States would either limit liability for companies during a disaster or they would not. Complaints about insurance companies that would not pay disaster claims would grind on. Cases contesting election procedures brought to restrict voting early in the pandemic would expand in the 2020 presidential election. If interest associations were challenging closure orders, the same motives would guide them to challenge other safety measures later. But if we look specifically at the earliest months of the pandemic, mapping related litigation before the presidential election and before a vaccine was available shows the problems and cleavages likely to reappear later. The pandemic in court is about much more than a public health problem that might dissipate. In the pandemic in court, or in related debates about

10 Introduction

the courts, national political movements relied on existing mechanisms to institutionalize ideas about markets, authority, and morals. National officials from members of Congress to the president of the United States argued that trading off people’s health for “the economy” was necessary. “The economy” was never people who worked and went to school, saw family members, and spent time in parks, but something more abstract. That abstraction required that landscapers and other workers and their family members be put at risk beyond the risks they already ran at work. In arguing for the economy over people or other living creatures, political officials gave credence to political theorist Wendy Brown’s warning even before the pandemic that the economy had come to dominate life, with its importance leading to political power exercised to enforce and protect markets above all else. Although in conservative political arguments, markets represent freedom, Brown argues that the freedom they represent requires enforcement, and conservative market-­oriented advocacy groups advocate accordingly. Enforcing markets takes on a moral dimension, she argues (Brown, 2019). The morality is one of personal responsibility, a flexible claim applied as much to objections against masks as to compensation for illness. These ideas are recurring axes of governance in the United States. Litigation is particularly amenable to moralizing about responsibility, since it promises to declare who is right and who is wrong. Moralizing during this ongoing disaster had at least two dimensions, around work and school, and around religious worship. From Republican points of view, businesses should be open so people could fulfill their responsibilities to work, and closure orders encroached on the free exercise of religion when they applied to places of worship. The individual attitudes toward public health measures that survey researchers found (Gadarian, Goodman and Pepinsky, 2022: 128–153) gained institutional endorsement via litigation groups, courts, and state officials. The Alliance Defending Freedom (ADF) (Hollis-­Brusky and Wilson, 2020), and ALEC (Hertel-­Fernandez, 2019) could deploy their expertise from decades of conservative advocacy to advance their vision of markets and morals in the pandemic. Litigating the pandemic illuminates where the United States stood in terms of political divisions and authority. It is safe to say that in 2020 and in 2021, all of litigation, and responses to litigation, happened in the context of the pandemic. The disaster colored everything. Not only did legislators discuss the threat of litigation by ­employees, but interest groups litigated the constitutionality of closure orders

Introduction 11

issued by governors. Parties litigated election administration. People who had to close their businesses under governors’ orders found that their insurance companies did not see the closures as insured risks and filed claims in court as well, as did attorneys who had long been working on policies to limit mass incarceration, filing complaints to release people during the pandemic. This book thus integrates recent court cases (some filed, some concluded) into the story of a pandemic amid a changing climate, against the backdrop of an election with threats to democratic inclusion. Climate change, in turn, brings other problems for governments to manage, including fires and floods, which continued in the pandemic and generated lawsuits as well. The jockeying over lawsuits provoked by the pandemic is ongoing and will continue for many years. Writing about these cases now can capture broad outlines and point out the politics of lawsuits that form part of governing the pandemic. They remind us of the constellation of factors shaping these cases— including inequality, climate-­related disasters, and restrictions on democracy and constitutionalism. Any end date for a study of this nature is arbitrary. The purpose of this book, then, is to argue that the pandemic has become an opportunity for already mobilized interests to extend, contest, and consolidate their power through the courts.

Plan of the Book Chapter 1 defines a disaster cascade. Drawing from the physical scientists who currently argue that following interactions among disasters is an urgent research priority, I argue that truly understanding the cascades and complex interactions requires including human systems. These human systems include the governing context for disasters, including the pandemic. Accordingly, Chapter 2 sets the politics of courts in 2020 and 2021 in the context of democratic backsliding, or state-­ level policies restricting democratic participation. I argue that the pandemic created new governance challenges from existing ones. These existing challenges included partisan arguments over appointments to the U.S. Supreme Court. That court and others were hearing cases that could reinforce existing partisan divisions, which in turn could help mobilize an electorate. Examples included challenges to incarceration in a pandemic and closure and mask orders, all of which advocates could assimilate into existing doctrine and court decisions. Courts could also reinforce the pragmatics of consolidating partisan control

12 Introduction

by limiting voting. The pandemic offered new opportunities to pursue ends that interest groups were already pursuing. Chapter 3 turns to alternative ways of thinking about how courts govern in the United States, and how decisions matter. A common question in scholarship on the politics of courts, particularly now in a changing climate, is what one appellate case that is broad in scope can do, and whether it can cause change in other institutions. I argue that searching for one case misses the broad scope of disruption that litigating in a pandemic brings and the many kinds of cases that are significant. Cases can be symbolically meaningful and can offer material benefits to individual litigants. They are not always the same cases. The next two chapters consider cases that played different roles in governance in the United States. Chapter 4 turns to the data on cases filed in court and how they contrast with cases and litigation threats as represented in Congress and in news reports. To understand the workload of legal disputes in lower courts, I turn to disputes over liability and to insurance claims. These cases matter to businesses. They rely on statutes and individual claims, and they demand a close attention to language that nonspecialists seldom find particularly inspiring. By summarizing case filings in the dominant fields for litigation in the pandemic, including insurance, this chapter will capture how in business cases, courts can set political agendas for legislatures. When national political commentary features only constitutional claims and news surrounding the Supreme Court, it reinforces the belief that the Supreme Court handles most cases, and that the most significant cases are constitutional. However, people who received neither federal funds nor insurance payments when they had to close their businesses could disagree. The chapter concludes with the insurance companies’ proposed resolutions to cases filed and risk in pandemics to come. I argue that the pandemic offered these companies an opportunity to suggest legislation that could last past the moment, since the pandemic is not the last disaster the insurance industry expects to face. If insurance claims and arguments about liability in the United States are the larger part of the workload for lower courts, then constitutional claims are the area most likely to play to partisan divisions about principles. Throughout the pandemic, both the Supreme Court and the lower courts heard cases tracking partisan claims about freedom, religion, and closures. Chapter 5 turns to these constitutional claims and who made them. I argue that the pandemic created an opportunity for groups motivated by preexisting political goals, including goals concerning religion and mass incarceration. Some

Introduction 13

constitutional claims did go to the Supreme Court during this time period: cases on voting rules, church closures, and the moratorium on evicting people from housing during the pandemic. Because the Supreme Court heard these cases, for many observers they came to represent the law, even if they did not form the majority of complaints that people made during the pandemic. Each of these issues is one piece of expanding practices favored by the leadership of the Republican Party, from restricting access to voting to entrenching protections for religious practice. To set the context for the opportunity that litigation afforded, this chapter describes these groups’ previous participation in the politics of litigating. In the same chapter, I also discuss constitutional claims that seek to advance policies about decarceration. The United States is a carceral state, which imprisons a greater proportion of its people than any other Western country. The conditions in prison and immigration detention facilities had already long been a matter for constitutional challenge. Confinement conditions in the pandemic only expanded threats to safety. Therefore, the chapter discusses litigating release early in the pandemic. By looking at these fields, this book follows both material and ideological divisions in the United States. These divisions have different but sometimes overlapping constituencies, from the businesses that want an insurance payout to civil liberties groups aiming to limit mass incarceration, and Christian conservative litigation groups challenging state and local governments over the free exercise of religion. The pandemic declared in March 2020 by the World Health Organization (WHO) is unlikely to be the last. It is even unlikely to be the most severe. Flooding, fires, mass incarceration, and inequality in property holding are unlikely to disappear anytime soon; nor are democratic backsliding, restrictions on voting, and the social divisions that overlap with and expand party differences. Therefore, organizations will continue to litigate. Courts don’t seem to settle disputes, but to frame them. Rather than seeking out the conditions for when a disaster cascade emerges, this book thus argues that beginning with a disaster cascade and turning to the courts will broaden our understanding of complex linked systems within a world that the pandemic and climate change have been remaking. The courts constitute a site for analysis not least because they animate conflict in the United States, giving it characters and actions—and officials theoretically responsible for fixing it. I show that the pandemic unfolded not only in the midst of a changing climate, but also in a time of state and federal

14 Introduction

constraints on democracy and civic inclusion—including ongoing systematic exclusion through mass incarceration. Interest organizations had long pursued their agendas in court, and they continued to do so during the pandemic. To date, public health writers have only glancingly noted the role that courts play, primarily referring to the U.S. Supreme Court. By also following the lower courts in a pandemic, this book helps piece together the larger puzzle of a shared public health issue that brought with it rancor and division. The United States will face heat waves, droughts, fires, floods, and future pandemics that will also overlap or intersect and reflect earlier political organizing. They will face the results of earlier decisions that are not easily undone.

CHAPTER 1

What Are Disaster Cascades?

S

cientists who work in modeling disasters have argued that hazards— storms, floods, fires—and the subsequent disastrous losses they bring need to be modeled as complex, interactive systems. A fire or mudslide can follow an earthquake, for example, and these disasters can interact in unpredictable ways. The claim for the promise of studying interactions marks the knowledge shift in describing disasters: what once were acts of God are now system failures (Hagen, 2021). The hazards scientists focus on are physical: earthquakes and fires, not failures emergent in politics as identity and division, failures in care, or the vulnerability to infection of those in congregate housing. Scientists who advocate for analyzing complexity were writing about these challenges before the advent of COVID-­19, so until now the interactions they refer to have concerned place-­based disasters, not a pandemic that sweeps across the world. Although people who write about physical hazards have been different from those who have written about public health, for both, central elements could include how people experience longstanding problems in a governing system where court decisions can amplify disagreements. The concept of disaster cascade has attracted geoscientists, science reporters, and social scientists who study hazards. Scientists argue that when analyzing physical hazards, too few focus on how hazards interact and lead to system failure. In 2018, civil engineer Amir AghaKouchak and coauthors wrote in Nature: “A levee failure, for example, can have many causes over an extended period, including weakening during drought, extreme rainfall, poor design and inadequate maintenance” (AghaKouchak et al., 2018: 460). Science reporters Thomas Fuller and Christopher Flavelle have argued that climate-­related disasters bring about disaster cascades (2020). They explain that in a cascade, disasters overlap, with each one triggering or

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Chapter 1

amplifying another. So many of the processes in climate change are well established and irreversible, and disaster cascades that risk catastrophic systemic failure well beyond one clearly delimited disaster merit more of experts’ consideration (Kemp et al., 2022). Similarly, the public policy scholars Joanne Chen and Michael Greenberg have studied the hazard mitigation plans put forward by states and localities; they define a cascade as “a single hazardous event” that “triggers one or more others leading to the same or even worse consequences.” Extreme heat, itself causing deaths, brings about increasingly extreme wildfires. Chen and Greenberg divide events into natural, anthropogenic, and hybrid hazards. They categorize events according to what causes them, and focus less on how they interact with what the authors call “human service systems” once they have arrived (Chen and Greenberg, 2021). For Fuller and Flavelle, wild fires, floods, droughts, and earthquakes are amplifying events, which are implicitly distinguished from the systems in which people live—systems that people experience differently by race, including schooling, child care, housing, mass incarceration, and food distribution. To dismiss or omit these institutions from consideration is to ignore the interactive complexity in physical and human systems. People in U.S. governing institutions have a long history of not following the diagnoses from disaster scientists and experts; governing officials have cross-­cutting concerns. Not least, federalism, or the division of authority across states and the federal government, means that achieving a single uniform policy is often impos­ sible (Knowles, 2011). Officials answer to demands from politically powerful people, not experts in hazards and how disasters happen. Policies that long predated the pandemic made limiting harm difficult. For example, mass incarceration concentrates vulnerable people in shared housing, so incarcerated people were especially vulnerable to the pandemic. Individuals who worked in prisons and jails could bring home the infection. Mass incarceration, like nursing homes and multigenerational households that included people who worked around others, created higher risks for vulnerable people during the pandemic. Like so much else during the era of COVID-­19, however, these risks remained largely invisible to people not living or working in these settings. These writers thus work with a widely used, if often implicit, distinction between hazards in the physical world, such as wildfires and floods, and the systems that are critical to people’s daily lives, though the hazards and the critical systems work together.



What Are Disaster Cascades? 17

Although AghaKouchak and Flavelle and Fuller ably show how the human systems that are integral to hazards interact via poor design and inadequate maintenance, in this analysis the human systems and the reasons for inadequate maintenance stand separate from the hazards, and are not subject to the same analysis for complex interactions that they advocate (2018). These human systems can themselves be part of fragile systems. In systems with little slack and high interdependence, failure in one part triggers failure in others. In a cascade, events follow pathways with feedback loops, amplifying the resulting damage. Including fragile human systems in describing disaster cascades, as I argue we must, extends the reach of the concept of disaster beyond simply its capacity to trigger other physical events—and even beyond the role of people in engineering these extreme events (Remes and Horowitz, 2021). It is compound and cumulative. In Florida, construction workers put themselves and their families at increased risk for COVID-­19 under state orders, by showing up to build buildings that were subject to increasingly extreme weather and rising sea levels in a changing climate. Landscape workers maintained lawns and golf courses that were once marshland and other habitats that could have contributed to limiting hurricane damage on the south coast of Florida. Race, too, shapes how people in the United States experience inequality and, in turn, disaster. Environmental justice activists and scholars have identified racial differences in rates of asthma and other illnesses (Foreman, 1999), as well as racial differences in devastation from flooding (Freudenberg et al., 2009). In the pandemic, racialized minorities were more likely to experience severe illness from the coronavirus, resulting in part from existing health inequities (Centers for Disease Control, 2020). The virus’s rapid spread among already vulnerable people was more likely given the living circumstances for both the incarcerated and the unhoused. Early in the pandemic, with incomplete information, experts and state governors concluded that spread in crowded indoor settings with many ill people was likely (Park, Meagher, and Li, 2020). Increased risk also affected elderly people and caregivers in congregate housing, which had long been plagued with safety problems. Sorting out the specifics of risk, spread, and illness requires going state by state and only drawing conclusions long after governors have responded (Joynt Maddox et al., 2022; LeMasters et al., 2022). Aggregate data says little about how people experienced risk and the mechanisms for transmission. To do this well requires storytelling, which has been emerging since the first wave hit (Hass, 2021).

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A related problem is that most descriptions of the risks posed by hazards exclude institutions and their decisions, even when these descriptions try to include people as integral parts of a given disaster. Even scholars who mean to include institutions as integral to disaster often divide disasters into human institutions and a physical disaster. Geographer Max Hope and his coauthors have argued for analyzing disasters as including both human and nonhuman actors. They maintain that people act from within disaster systems, not outside them. Therefore, they imply that human systems are integral to disaster cascades as well. Even so, Hope still relies on a description of hazards’ interactions as physical, separate from people: “Natural hazards and their impacts can have complex inter-­relationships. A primary hazard can trigger secondary hazards that in turn trigger other hazards in a multihazard cascade. An earthquake for example can trigger landslides that trigger flooding. Secondary and tertiary effects can amplify and exacerbate the impact of the initial hazards” (Hope et al., 2020: 1174). When we interpret hazards’ relationships in this way, people come in later, after the hazards have created the disasters. On this analysis, human institutions create the vulnerability that lead to physical disasters affecting p ­ eople differently (Hope et al., 2020; Tierney, 2014). According to Hope and his coauthors, differences in vulnerability require integrating an analysis of deep poverty, which exacerbates disasters. Vulnerability, and not what people do to craft their world, is the central theme for many analyses of risk, harm, and disaster in times of a changing climate (Anna Davies et al., 2020). The idea of cascades circulates as analysts try to capture the complexity of the world. Economists and European social theorists have named complexity and amplification through human systems a polycrisis, provoked by first the European financial crises after 2008, then COVID-­19 (Tooze, 2022). The climate scientists Thomas Homer-­Dixon and Johan Rockström argue that “risk synchronization” results from “complex and largely unrecognized causal links among the world’s economic, social and ecological systems” (Homer-­Dixon and Rockström, 2022). These discussions appear in newspaper opinion pieces and newsletters, contributing to popularizing the term but without focusing on how problems interact, or, specifically, how institutions in the United States are implicated in governing risk amidst existing cleavages and inequality. The actors in court during this disaster range from businesses shut in the pandemic, whose owners sought insurance payouts and were denied, to litigators who challenged state closure orders, to the incarcerated who sought



What Are Disaster Cascades? 19

release. Some court cases emerged as part of partisan political disputes, notably, whether including churches under closure orders violated the free exercise of religion. The U.S. Supreme Court, the focus for media coverage of the courts, decided these cases. The Republican Party had appealed to its electorate over many years by promising judicial appointments, especially to the Supreme Court (Ziegler, 2022). Lower courts and state courts decided cases about insurance and heard multiple cases about closure orders, even when they did not reach the Supreme Court. Familiar leading political actors in the pandemic—Anthony Fauci and other public health officials, the president of the United States—are not central in most court cases, as we shall see in the pages that follow, though public health information could and did inform some cases.

Disaster Cascades, Governing by Rules, and Complexity Disasters can be opportunities for political officials to consolidate power and exacerbate inequality, or they can be opportunities for transformative change. Hope and his coauthors argue that change cascades can follow disaster cascades (2020). Sociologist Michelle Dauber has argued that the touchstone for assistance in the United States is sympathy, so disasters are an especially compelling site for extending assistance (Dauber, 2013). In contrast, Naomi Klein argues that disasters in capitalism have allowed the more powerful to reshape cities for the affluent (Klein, 2007). Problems do not even gain national attention as crises until more affluent people are suffering (Strolovitch, 2013). The description of something as a crisis ignores the enduring processes that allowed the problem to happen (Edelman, 1977: 45–46). Though political officials can use the language to imply they are coming together to address shared trouble, crises and disasters have always had an uneven impact, most often disadvantaging those who are already less well off (Tierney, 2014; Edelman, 1977). In 1906, San Francisco experienced a magnitude 7.9 earthquake, followed by a fire. For months, people who lost their homes lived in camps around the San Francisco Bay, and city leadership looked to dispossess people who had fled of the property they had previously held. San Francisco’s iconic Chinatown with its decorative architecture dates from after this disaster. The Chinese American community negotiated with city leadership to keep their property by offering something white city leadership wanted: the reinvention

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of their neighborhood for tourists (Andrea Davies, 2011). After a disaster, rents often increase, making cities less affordable. Contractors who provide goods and services make money from the disaster (Klein, 2007). Complex interactions can thus take place across natural and human systems, rather than between fires and floods or among levee failures, floods, and droughts. Managing fires or floods, and the housing people need afterward, is an additional potential point of failure. Disasters offer opportunities for governments to reshape how they govern, which sometimes involves suspending rules. A “state of exception,” as theorized by Giorgio Agamben, was long the hallmark of governing without law, and disasters helped officials avoid legal processes. Wars are the classic exemplar of a case where governments suspend rules and laws, and wars are the origin story of disaster: both humanitarian relief and disaster management practices began with conducting wars (see, e.g., Fassin and Pandolfi, 2010). In the late administrative state, though, authority even in exception has been enacted and contested through rules, orders, and court cases. Both people claiming legal redress and those answering the claims organize disasters, placing them in a governance web that long precedes an event and may well outlive it. Nasser Hussain developed this argument about the centrality of law and legal orders in disaster concerning war, but his analysis applies to other disasters as well, including floods, fires, hurricanes, and, in 2020–2021, the COVID-­19 pandemic (Hussain, 2007). Governments rely on proliferating rules and laws, not on avoiding laws, when governing today. In a late bureaucratic state, disasters of all kinds are managed according to rules and processes, including processes to suspend rules. An example is the emergency use authorization for the COVID-­19 vaccine in 2020. Getting the vaccine approved for use in December 2020 required forgoing the ordinary processes of drug approval. Yet there were still bureaucratic processes for authorizing emergency use, and the vaccine went through those processes (Zuckerman, 2021). Many people claimed the processes to reach final approval took too long; others argued that following the authorization process could increase vaccine confidence. In the United States, emergency orders and rule revisions during a pandemic could be brought to court. According to Agamben, states of exception in disasters are a mechanism by which autocrats develop their power. In the United States and around the world, dampening democracy and consolidating power come with rules and court cases, and people with the expertise to mobilize both. The process of governing with rules, with exceptions to rules, and with



What Are Disaster Cascades? 21

opportunistic interpretations of rules, including in court, also helps explain how states extend antidemocratic authority using existing state apparatuses. Chapter 2 describes the courts’ role in limiting democracy in greater detail, and I argue that pandemic litigation was one more opportunity. The disaster cascades identified by physical scientists are complex and tightly coupled systems, to borrow sociologist Charles Perrow’s terms (1984). Perrow distinguishes “tightly” from “loosely” coupled systems, a point that offers a way of understanding disaster cascades. Complex, tightly coupled systems have multiple pathways for interactions among components; failures of component parts amplify each other. Interactions and pathways are too complex for managers to anticipate them all—they lie well beyond the control of individual operators. In loosely coupled systems, component parts do not have multiple unexpected ways of interacting and components remain isolated from each other. Perrow argues that only complex, tightly coupled systems promote catastrophic failures (Perrow, 1984). He builds his analysis from engineered systems and industrial disasters, including in nuclear power. In a complex system that results in catastrophic failure, he notes that someone will have always made a mistake, and people will always be able to point to that one mistake to explain a failure. Fully understanding a disaster in a complex tightly coupled system requires understanding how links between subsystems could amplify any one failure. That is an engineered problem, Perrow argues, not any one person’s fault. For example, after an industrial explosion and fire at the Union Carbide plant in Bhopal, India, in 1986, Union Carbide argued that the failure resulted from a single person’s mistake. Yet from a complex systems perspective, only a very fragile system would allow one person’s mistake to result in death and disability for thousands (Fortun, 2001). In contrast, failures in loosely coupled systems, which have substantial redundancy and few unknown pathways for failure, are more likely to result in damage that adds rather than multiplies. Perrow (1984) argues that dam failures usually lack multipliers across systems, in contrast with engineered failures in industrial accidents. Dam failures are more likely to be problems with additive rather than amplifying failures because they are isolated from other systems that in turn could fail. Physical scientists argue that the hazards are the source of complex interactions. The hazards, though, are at least partly engineered, and Perrow describes how components in engineered systems interact—and includes people and organizations as part of these complex systems.

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Climate change only amplifies Perrow’s (1984) point. Even the simple failures he distinguishes are part of more complex systems in a changing climate. Levees have failed in extreme storms and rainfall. Failure can result from interactions between maintenance problems, from building in areas subject to flooding, and from the increasing intensity of extreme events. Broadening a system’s definition to include both the problems that strain dams, reservoirs, levees, and utilities and the legal structures that allow their building leads to the conclusion that large numbers of systems include multiple components with complex interactions and multiple pathways for failures. Health care in the United States during COVID-­19 qualifies as a case in point. Here, failures can multiply across the system: increases in infections lead to increased demands for personal protective equipment, for health care workers, and for hospital beds. All these require resources and lead times to produce. The interactions didn’t end there. In 2020, states began granting nursing students permission to graduate early so they could start working with patients (Flotte et al., 2020). The virus also interacted with care responsibilities that people had for family members, and the need for work and wages. Parents who work for wages and care for school-­age children need schools to be open, and in turn, schools need good ventilation, low infection rates, and reliable information, which was in short supply early on. Any built-­in redundancy that aided workers or families was personal, and a function of the work people did. For example, some people lived near family members who could help. Families with more than one adult had some redundancy built in; parents could possibly care for children if their work schedules could be made to complement each other. Employees who could work remotely could also find an alternative if their children’s local schools closed. They could move to places where schools were open, and some did (Natanson, 2021). There was no systematic way to help people work and care for family members at the same time. The virus, and the failure to control it, also interacted with schools, however, especially those without top-­notch ventilation and with uncertainty about viral spread. These factors further interacted with the need for all adults in a household to work for wages, given wage stagnation in the United States, and the long-­standing lack of generally available subsidized care (Danziger Halperin, 2020). In the United States, many children rely on schools for meals, so school closings led to children missing meals. Although schools can and did distribute meals to take home, getting meals to students proved difficult (Plank et al., 2022). Families may not have known about distribution sites, or may have found it difficult to get there.



What Are Disaster Cascades? 23

In short, in tightly coupled systems, the failed parts are not isolated from other events, institutions, and factors. Failure spreads quickly. Tightly ­coupled systems have little slack, or ability to absorb shocks. Even in describing complexity, Perrow (1984) circumscribes the systems he analyzes to those goods and services that engineers and operators understand they are producing. He does not include what allows people to show up to work at the dams or nuclear power plants in the first place. But analyzing only what utilities produce understates their susceptibility to failure in complex tightly coupled systems. The pandemic made the co-­constitutive nature of physical hazards, people, and disasters impossible to ignore. People have homes and children who often attend school, all of which makes it possible for them to go to work. Producing people who can work—and producing a social world that allows work—is what theorists call social reproductive labor (Collins, 2017). Most analysis of disasters do not take this form of labor into account. But fra­ gile systems require functioning public institutions, including education, child care, and public health officials. They require the benefits of social reproductive labor. Limiting our view of systems to dams and their failures or to industrial systems and their accidents diminishes or brackets off how the people who are builders or operators live outside work. And lives both outside work and at work, which are always linked, collapsed for many people in the pandemic. Some components of disaster cascades can generate lawsuits: in the pandemic, there were disputes over insurance and over closure orders. All require rights someone can claim to be enforcing, whether in an insurance contract or in a constitution. Without legal provisions, a component can be critical to a functional system yet generate few legal claims (Rosenberg, 2008). Care work, or reproducing social worlds, was central in the pandemic, and therefore worth describing as one part of the cascade. However, without positive rights to child care, care work generated little in the way of lawsuits. Even in a system with litigation as a governance strategy, where litigation characterizes so many problems, care work can appear at the periphery.

Gender and Reproducing the Social World in a Disaster Cascade Social reproduction involves “processes and politics for maintaining and sustaining the lifeworld” (Hall, 2020b, 87). The physical world in which hazards operate is co-­constituted with the social world, and that includes the

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need for social reproduction. Feminist economist Sarah Hall follows theorists Lauren Berlant and Nancy Fraser to argue that social reproduction is reproductive labor, which includes “childcare, education provision, healthcare and so forth . . . a complex network of people, practices and politics, labor, love and life; it does the work of maintaining and sustaining lifeworlds” (Hall, 2020b, 89; see also Collins, 2017). The organization of lifeworlds long predated COVID-­19; failures in the pandemic require a timeline that begins well before it (Horowitz and Remes, 2021). In the pandemic, “healthcare and so forth” has included public health, a profession brought to the fore of public discussion in the pandemic. Public health professionals managed orders about whether schools, retail businesses, parks, and places of worship could be physically open. They consulted with other officials about orders to wear masks in public. In the United States, these public health officials are disproportionately women. They are among the “plethora of actors . . . sustaining lifeworlds” (Hall, 2020b, 89). Success for them meant few infections. Around the country, many public health officials experienced public mistrust of health measures, a skepticism encouraged by national leadership. Threats against these officials—again, mostly against women—added misogyny to the elements interacting with the virus to create governance failures in the pandemic (Barry-­Jester, 2021). Disaster reports always include hopeful stories of people helping each other (Fothergill, 2003); the friendships and neighborliness that aid in managing a flood or a pandemic long precede it (Kyne and Aldrich, 2020). Leaving these elements out implies they are not among the components of tightly coupled systems interacting to amplify or dampen disaster cascades when they actually are. Once systems include the work of social reproduction, they include that “plethora of actors across spaces and times” required for reproductive labor and social reproduction (Hall, 2020a: 90). Here, actors include those who raise the people who show up to work, the schools and child care that allow people to work, the parks and public spaces that allow people to gather outdoors, and the nurses, health care staff, and child care staff who work in hospitals, congregate care settings, and child care centers. All these actors are critical to the complex of events that unfolded in the first waves of the pandemic. People manage disasters, and gender organizes responsibilities (Enarson and Morrow, 1998; Enarson, 2012) and social capital (O’Neill and Gidingil, 2006). Women have been disproportionately responsible for managing family and community in the pandemic. Indeed, women were more likely to be managing social reproduction in paid and unpaid work even before the pandemic



What Are Disaster Cascades? 25

(Collins, 2017). Prior to the COVID-­19 outbreak, the costs of not supporting social reproduction affected millions of people, but the more affluent could buy their way out of the costs of mixing wage work with care work. In the pandemic, much of the world experienced the costs of relying on families to deliver care, with no backup system for schooling and no public system to recognize and alleviate the costs of reproductive labor. Absent containing the pandemic, managing often required what parents could call good luck, and what were individual solutions: an ability to move to a place where schools were open, calling on a family member, or having a job at which they could work flexibly. Good luck without legal provisions could not generate lawsuits supporting care work. Disadvantage for families was spread unequally, depending on an ability to work remotely. If even the workers with the most flexibility lost the ability to work effectively in the pandemic, everyone teaching children at home while also working for wages lost out. For some of the most advantaged, longer-­ term projects requiring greater attention are necessary to advancing careers yet the easiest work to deflect. For faculty members in universities, that means research. Women faculty members in universities reported losing more time for research than men did. Some classes meet at a set time and others schedule meetings that one cannot always miss. Deadlines for reports may not move, and research gets squeezed out (Deryugina, Shurchkov, and Stearns, 2021). As economist Olga Shurchkov wrote early in the pandemic, research during the pandemic for people responsible for children at home became a matter of dealing with children’s tempers, Zoom meetings, and moments to scribble ideas, all when child care was closed (Shurchkov, 2020; Aviram, 2021a). Losing work time for a year could also set back women’s career advancement over a longer term. Limiting women’s advancement leads, in turn, to less diverse workplaces, and does little to close the wage gap between men and women. What’s more, it means losing the actual work that women were doing. Blurring the lines between work and home, as the pandemic did for those with greater caretaking responsibilities, led to public reflections in prominent academic journals centering on experiences in college and university workplaces. Many academics had not lost income in the pandemic and could work from home, so they were among the most fortunate. Reflections on academia in these early stages of the pandemic are useful both for elucidating the experiences of the more fortunate and for what these reflections imply for everyone else. Prominent peer-­reviewed journals seldom publish reflections on everyday work conditions. An article published in the general science

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journal PLoSOne by bench scientists on ten simple rules during the pandemic for women who were principal investigators or lead scientists answered an earlier article about research in the pandemic that had said nothing about gender or care responsibilities. The article argued for performing core tasks and pushing back against any additional demands. It followed the formal structure of journal articles, giving it the feel of a parody in the midst of the tragic absurdity of the pandemic. Supplemental materials complemented the simple, direct urgency of the article with humor. Links for supplemental materials in most articles usually take a reader to data, descriptions of lab procedures, or further analyses. The supplemental materials for this article included lists of coping strategies that included, “Keep a pillow nearby to scream into every time a colleague sends you an email saying how great it is that we all have so much ‘grant writing time’ on our hands” (Kreeger et al., 2020, supp. file 2). Suggestions included “Coffee. Chocolate. Wine. Repeat,” as well as a statement that child labor laws did not apply in a pandemic, so children could become research assistants. If we broaden the scope of what counts as part of a disaster to include the parents screaming into pillows during a pandemic, a more nuanced portrait emerges, one calling out for a more interdisciplinary analysis (Horowitz and Remes, 2021). Even as engineering scientists advocate for assessing complex interactions in hazards, descriptions of hazards and the response to the disasters they bring do not consider gender in the long timeline of disaster (Enarson, 2012; Foreman, 1999; Fothergill, 2003). Without positive rights, though, it may lead to screaming into pillows, relying on children as research assistants, and long-­term research into costs for employment equity, but it will not lead to court cases. The COVID-­19 pandemic put the lie to leaving out social reproduction as one of the tightly coupled components in a complex system. When schools closed, children stayed home. In many parts of the United States, they attended school online (Reid, 2020). Children needed care, including support for online or hybrid schooling. Responses were often private and individual. Relying on individual solutions exacerbates inequality; people who have more flexible work schedules, can work from home, or have other family members nearby with extra time are better off than those who do not. For people living with vulnerable family members, showing up to work requires an ability to rely on others for caretaking, whether the others include family members, school, or paid care. A failure in one kind of help can trigger failures in others. If components interact in multiple ways, some of them



What Are Disaster Cascades? 27

unknown, unexpected, or ignored by those with the power to do something about them, then failures amplify each other. What difference does all this make? The pandemic has clarified the limits to treating risks as separate. Public health writers were the first to write about the complexity of the pandemic. They, too, saw a disaster cascade in a complex tightly coupled system; in late March 2020, less than two weeks after the WHO had declared a global pandemic, sociologist and opinion columnist Zeynep Tufekci argued that early failures in predicting how bad the outbreak could be resulted from not thinking through complexity and limits to health care delivery (Tufekci, 2020). Complex coupling in a pandemic extends to the systems often taken to be outside the disaster, including care work. Care work is among the “social and political processes shap[ing] the . . . experiences of COVID-­19” (Horowitz and Remes, 2021: 7). Including these social processes as intrinsic to COVID-­19 and other disasters deepens complexity’s meaning in disaster (Garbes, 2022). Extending what is outside or inside the pandemic includes other social processes, resulting in what are commonly understood to be acute disasters, all of which are tied to governance decisions over time. Fires continued in the pandemic; California saw its most devastating fire season on record in 2020. In February 2021, during the height of the outbreak, Texas experienced an unprecedented deep freeze that halted electricity delivery (Domonoske, 2021). Texas had chosen to not be part of a multistate utility grid that could have delivered electricity when one part of the system failed. Complex litigation across judicial districts to find compensation for the harms suffered has followed (Texas Lawyer, 2021). During Texas’s electricity failure, and despite the dangers brought by the pandemic, those with electricity housed friends and neighbors who had none (Arkansas Online, 2021). Hosting friends and neighbors was safer to do if people had already been able to limit their exposure to the virus, not least by working from home. It was riskier for people who had been going to work in person. Workers who had to show up in person were often people with lower income, thereby amplifying the risk of COVID-­19 exposure during the power failure for already vulnerable p ­ eople. Disasters cascade: a pandemic makes a power failure riskier. The power failure results both from a freeze, and from decisions about how to configure an electrical grid. Each entity bears some legal responsibility and people who could claim harm because organizations did not meet these responsibilities. Each had enough money at stake to attract lawyers. Each can generate the court cases that mark conflicts in a way that the gendered responsibilities for care could

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not. Instead of treating these events as separate and acute, to be analyzed separately, when they share fundamental causes and governance processes, more pessimistic writers have described them as extinction events. An extinction event implies either the demand for immediate, complete transformation, or that a problem is less to be managed than suffered. Neither transformation nor abandonment is what courts or other governing institutions achieve.

Extinction Events, Climate Change, and a Pandemic By the 1990s, the global scientific community had agreed that climate change was an existential threat, describing it as “second only to nuclear war” (Allan, 2017: 809). The climate-­related floods and fires that ripped through Australia and the United States in 2020, during the pandemic, reminded many people of this existential threat. During the Cold War, the government planned to manage what was understood as a looming catastrophe, though no one ever had to implement a plan. In hindsight, these plans strike us as faintly ridiculous, given how catastrophic nuclear war would be. The sociologist Lee Clarke argued (1999) that government plans drafted to respond to nuclear war during the Cold War were “fantasy documents.” Nuclear war, he argued, was not survivable. Documents that planned how to manage the aftermath— because that’s what managers do—ignored these plans’ improbability. In retrospect, expecting to manage nuclear war instead of responding with grief to the overwhelming loss the world would have experienced deserves the skepticism Clarke expressed. When the world faces a catastrophe, managers are expected to manage. Whether or not the pandemic constituted an extinction event, many people continued on as though the world was not ending anytime soon. Legislatures enacted extended support for the workers whose workplaces were shuttered. Insurance companies disputed claims or paid them. Health care workers donned protective gear and took care of COVID-­19 patients. It may not have been business as usual, but organizations with work to do did not all quit. With few exceptions, this practice of carrying on, and critiques of how managers did so, dominated early commentary. Thoughtful academic journal articles, books, and long-­form magazine articles on managing or not managing the pandemic appeared quickly, as early as 2020 and early 2021. The popular writer and successful financial analyst Nassim N. Taleb, interviewed in the New Yorker early in the pandemic, was one of the exceptions. Taleb gained



What Are Disaster Cascades? 29

popularity with his bestselling 2007 book The Black Swan, which argued that world historic change comes from the extraordinary, not the everyday. The title of Taleb’s book comes from a story he tells of someone who had never seen a black swan and who therefore did not believe they existed—until he saw a black swan. Taleb argued that public policy makers and others act as though tomorrow will be like yesterday, drawing conclusions from patterns, but that people could not be more mistaken. Extreme, outlier events reshape the world, and humanity learns little about these events from what came before. Generalizing from the seasonal flu does no good in a pandemic. Insuring unique events requires that agencies try to model and price risk, an approach that often relies on historical data, not on dramatic change. Not only are models of extreme events uncertain, but they are also unpersuasive to people who have never seen a particular hazard strike before. As Taleb explains, people believe there is no such thing as something they have never seen. The success of his book and the extremity of the costs the pandemic imposed made Taleb a likely person to interview once the pandemic had taken hold in 2020 (Norman, Bar-­ Yam, and Taleb, 2020). In reflecting on the pandemic in an article published in April 2020, Taleb argued that COVID-­19 is the type of event that risks eventual extinction. No one event may extinguish humanity, but cumulatively, something extreme is likely to (Norman, Bar-­Yam, and Taleb, 2020), especially in a changing climate with increasingly extreme events (Kemp et al., 2022). Given the risk, Taleb and others argued that the issue is not whether anyone anticipated a particular extreme event, but building capacity before increasingly common extreme events strike and work their way through systems. In his 2007 book, Taleb pointed out that people narrate events once they have struck, as though people can know cause and effect. He argues people largely don’t know. Narrations deceive; we make sense of events after the fact when drivers of the effects of extreme events include amplification across complex systems (Taleb, 2007: 63–71). The sociologist Zeynep Tufekci pointed out that health security planners had long expected a pandemic. She noted it was not a black swan (Tufekci, 2020). The point is to build strength in systems before events strike. Conflicts over managing the pandemic, including officials’ scramble to shore up care, employment, school structures, and the well-­being of ill and elderly people in prisons and nursing homes implies that managing well beforehand would have required revising many institutions. Public health officials had been assessing people’s role in creating and failing to manage risks. The Johns Hopkins University Bloomberg School of

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Public Health coordinated leading public health experts to synthesize information about risks and preparation. Their work resulted in the Global Health Security Index (GHSI), which was published in 2019, just before the pandemic emerged. The GHSI received widespread press during the pandemic for having found that the world was not well prepared for a global infectious virus. The report identified the United States as the best prepared in an unprepared world; the unfolding pandemic gave the lie to that somewhat reassuring perspective. The problem rested in human failings. Like the GHSI, David Morens and Anthony Fauci, both of the United States National Institute of Allergy and Infectious Diseases, argued in the prominent journal Cell that people are part of the environmental dynamic leading to infectious diseases (Morens and Fauci, 2020). Public health scholars and biologists writing about pandemics have cited climate change as a general cause and context for the pandemic (GHSI, 2019; Carlson et al., 2020). The public health scholar and public commentator Peter Hotez lists many of the problems plaguing the world—wars, poverty, climate change, migration, and urbanization—as drivers for a host of illnesses and as precursors for pandemics in his 2020 book Preventing the Next Pandemic. Hotez also warns of climate change as a driver of outbreaks of neglected tropical diseases (NTDs), his central concern. For Hotez, climate change includes land use, habitat loss, and fires and floods, each a disaster in its own right (Hotez, 2021: 12–13, 53–57; See also Christakis, 2020: 298–99). A 2021 article in Environment International by twenty-­ two public health officials from around the world listed multiple research priorities for assessing connections between the pandemic and climate change (Barouki et al., 2021). The article’s lead author was Robert Barouki, an environmental health scholar and physician who has led task forces in France. The report included factors contributing to climate change that likely facilitated the virus’s spread and could facilitate the spread of other viruses: habitat loss, intensive farming, urbanization, intensive livestock farming, and global travel. It turned to describe the environmental health stressors that made infections for some people more severe: air pollution, for example. It lists numerous factors through which public health is always entangled with governance, even if specific governance practices are not their focus. The broad scale of questions necessarily leaves out problems not set within their professional framework of physical hazards, health delivery, and health disparities. The Center for Climate, Health, and the Global Environment (C-­Change) at the T. H. Chan School of Public Health at Harvard University also linked climate change and the pandemic, centering



What Are Disaster Cascades? 31

on health inequality. For example, people suffering from illnesses resulting from air pollution, which includes carbon emissions, were more likely to suffer if infected with the SARS COV-­2 virus (C-­Change, 2020). The systemic interactions for COVID-­19 are difficult to contain to public health as public health officials understand it. Modeling complex interactions across disasters applies as much to the pandemic and its interactions with fire management, mass incarceration, and insurance as it does to interactions among physical hazards in levee failures, fires, and floods. The governing institutions at stake in these interactions include courts. All the pandemic happened in the context of climate change, and its reach is far enough that all of governing, including litigating, can be understood as taking place within the context of the pandemic and climate change. Why does this matter? Ascribing problems to climate change in court cases has meant finding someone to blame for a given disaster or for greenhouse gas emissions (Setzer and Vanhala, 2019; Sterett and Mateczun, 2022). The public health writers discussed previously found climate change a useful way to describe myriad long-­standing problems without blaming an agent for the purpose of liability in court. If a pandemic is connected to climate change in causation and actors, though, then litigation about the pandemic—who brings cases, and over what—broadens what counts as climate change litigation beyond the cases included in studies of environmental litigation. Assessing litigation directly about climate change has turned to the oil companies that advocates hope to hold responsible for greenhouse gas emission, and the governments responsible for enforcing environmental laws. Including litigation in a pandemic broadens the actors, and allows for seeing connections in who mobilizes, and how mobilization connects to fundamental governance challenges. For public health officials and environmental scientists, placing COVID-­19 within the complex interactions that created it as a disaster places the pandemic squarely within the world of climate change. Public health officials have argued that COVID-­19 is neither the last pandemic nor necessarily the deadliest that will appear in the twenty-­first century. The virus’s rapid spread came about through practices that currently rely on fossil fuel emissions and on changing habitats in a changing climate. The links are multiple. The virus causing COVID-­19 came from nonhuman animals and crossed to human beings. The increased risk from pathogens resulted from habitat loss and very mobile people living close to animals. Habitat loss and land use include the many buildings and golf courses in South Florida where landscape workers

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were exposed to the virus. It rapidly spread around the world because people travel (Chinazzi et al., 2020). It moved quickly through cities, where people come into close contact with each other. In the United States, the first cases news reporters identified were on cruise ships, themselves sites where a virus can spread swiftly because people inhabit such close quarters. The conditions that public health writers outline as fostering outbreaks—habitat loss, climate change, extreme poverty, global travel—are not disappearing. For the purposes of broadening what counts as part of the pandemic beyond public health as public health commentators understand it, dire warnings about the existential threat of climate change and COVID-­19’s link to this threat place the pandemic in a tradition not of pandemics alone, but of complex unmanageable risks. Turning from responsibility for a disaster to the broader context of a changing climate also allows us to better track how disaster scientists understand causation. Climate scientists argue that disasters are probabilistic. They become more likely in areas that are at risk in a changing climate. Indeed, climate scientists have argued that asking whether any one disaster resulted solely from climate change is asking the wrong question (Swain et al., 2020). Similarly, to say that pandemics are more likely in a changing climate that includes global travel and where people live close to wildlife in densely populated cities in a world where people travel (GHSI, 2019) is not identical with ascribing a particular pandemic to specific causal agents that can be held responsible, which is what courts largely require. What difference does this make for our analysis of litigation during the early months of the pandemic? If we take on the health writers’ understanding of a pandemic as expectable harm in a changing climate—while keeping in mind that holding fossil fuel companies responsible for that changing climate continues to prove difficult—then what counts as environmental litigation has just expanded, from narrowly focused cases blaming oil companies to all litigation plausibly connected to the pandemic. Both the pandemic and climate change share origins in the human history of trying to dominate the physical world (Ghosh, 2021: 222, 235). Institutions organize that aspiration as well. Organizations active in challenging restrictions in the pandemic in court are part of policy networks opposing regulation of greenhouse gas emissions. Both are part of the conservative electoral coalition in the United States. Skeptics about both the pandemic and climate change share a mistrust of scientific expertise (Rutjens, van der Linden, and van der Lee, 2021). Refusal to turn over all decision making to experts has



What Are Disaster Cascades? 33

long-­standing support within democratic governance, which requires building agreement through participatory processes. In recent years, the conservative legal movement has made undermining deference to administrative agency expertise a priority (Hollis-­Brusky and Parry, 2021; C. Green, 2021). In the pandemic, misinformation and doubts about expertise spread through social media, where it was monetized through ads that sell products to the fearful (Gabarron, Oyeyemi, and Wynn, 2021; Hussian et al., 2021; Kouzy et  al., 2020). In the United States, Republican voters were more likely than Democratic or Independent voters to deny the reach of the pandemic or the value of the vaccine once it was available (Deane, Parker, and Gramlich, 2021). So, in sum, public health officials and climate scientists have both urged for the analysis of interactions across disasters. For climate scientists, disasters are brought about by physical hazards, and the associated interactions also take place across physical hazards, such as mudslides in the aftermath of fires. Although concern for human well-­being pervades the analysis, in this model the physicality of the hazards, not governance structures, lies at the heart of understanding the risks people face. For public health officials and other scholars, people act within existing structures, rather than finding opportunities to remake them or consolidate power within them. For both climate scientists and public health officials, legislatures, courts, city planners, mayors, and governors remain in the background. As the COVID-­19 pandemic wore on, though, decisions from all these officials were increasingly and self-­evidently significant, as state officials differed in whether and when they ordered parks, businesses, and schools to close or people to wear masks. Put another way, it became clear that governing officials did not all prioritize public health or differed in how they interpreted what public health required, just as they have not all prioritized preventing climate-­related disasters.

Managing the Pandemic: Leaders, Civil Servants, Trust Physical scientists take the human systems that create and respond to problems as stable, with readily agreed-­on purposes, not coconstituted with the physical disasters they analyze. In this interpretation, levee managers will try to ensure their levees do not fail; public officials will respond to a pandemic and not use a disaster to find opportunities to advance a political agenda that is disconnected from problems. But disasters, it turns out, are malle­ able. The American Petroleum Institute (API) linked the risks people faced of

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contracting COVID-­19 at work to what it described as the unnecessary burdens imposed by environmental regulation—to take just one example. The industry organization, which has long been politically active, requested and received exemptions from regulations. The organization claimed that since COVID-­19 required people to stay home and stay apart from one another, paperwork was more difficult to fill out. Industry newsletters assured people that regulatory relief would not affect substantive compliance with emissions regulations (M. Green, 2020). For API, the pandemic provided an opportunity to advance an existing governing agenda: deregulation. Physical scientists represent cascading disasters as creating problems with origins that all of us will agree on after appropriate investigation has been made. Neither credit taking nor blame avoidance, both common political strategies (Zahariadis, Petridou, and Oztig, 2021), are part of the disaster cascades they describe. Yet the COVID-­19 pandemic, resulting from a virus, has been rife with both behaviors. COVID-­19 has been blamed variously on climate change, global travel, China’s failure to control the initial outbreak, and failures in preparing states and nations properly with stockpiles of personal protective equipment—not to mention the failure to ensure proper social distancing and masking among a sometimes-­skeptical public. Such attributions imply different actions from governments and the people, from managing a changing climate to sanctioning China. Why does this matter? How we talk about the pandemic shapes the scale for appropriate responses. Constraining China implies the satisfaction of blame without needing to rethink everything, from child care and schooling to work and security. Resilience after disaster is understood as returning people to the same level of safety they had before the pandemic, rather than rethinking the dismal safety or precariousness of businesses or the mistrust shaping life before the pandemic (Horowitz and Remes, 2021). Analysts agreed that poor management formed part of the problem, even if not all news reports did. Insider accounts from people who had access to national political officials converge on the failures in managing a public health disaster. Explanations for failed pandemic management in the United States rapidly converged around design and funding problems in the Centers for Disease Control (CDC), leading to missteps such as designing a flawed COVID-­19 test, and around political leadership that downplayed COVID-­19 and refusals to mandate nonpharmaceutical interventions (NPIs) such as masks (Abutaleb and Paletta, 2021; Baldwin, 2021; Christakis, 2020; Gottlieb, 2021; Hotez,



What Are Disaster Cascades? 35

2021; Kapucu and Moynihan, 2021; Lewis, 2021; Slavitt, 2021). Another key failure was not gearing up production of personal protective equipment when COVID-­19 was spreading in Wuhan, China, in winter 2019–2020. Constraining the pandemic to these failures rather than the histories laying the groundwork for multiple governance failures once again marks a disaster as a discrete event rather than part of a broader set of problems (Horowitz and Remes, 2021: 7–8). Hotez, who linked the pandemic to climate change and other large-­scale complex problems, leaves it to other experts to suggest how to manage the vast array of problems he lists. He argues that the scientific infrastructure of wealthy countries does not see enough of a payoff to addressing NTDs, but that they are an opportunity for diplomacy. He argues for “vaccine diplomacy,” or using vaccine delivery and development for humanitarian purposes, and the joint international development of vaccines (Hotez, 2021: 20–21). Diplomacy is the world of international negotiations, not everyday experiences. Collaborating can also help improve countries’ reputations, and national leaders can try reputation management to deflect criticism of other human rights violations. China, for instance, engaged in vaccine diplomacy by distributing the COVID-­19 vaccine at the same time it was engaging in genocide against the Uighurs in western China (Richardson, 2021). Bestselling writer Michael Lewis joined the cluster of writers summarizing the pandemic’s emergence and early management. In a book published just a few years before the pandemic, he interviewed people in the national civil service, arguing that they were critical to managing threats to the United States. Lewis warned of civil servants’ concern about “the fifth risk,” managing projects where officials managed day to day and nothing dramatic happened, but where mismanagement could lead to catastrophe. He defined the fifth risk as short-­term approaches to long-­term risks (Lewis, 2018). In interviews, Lewis argued that he had to write about the pandemic once it struck: the fifth risk had shown up. In his resulting 2021 book, The Premonition, Lewis argues that management is the key challenge, and the primary way the United States failed. Like other writers who fault specific actors, Lewis’s pragmatic prescriptions imply that groups can come together with public health as a priority, rather than the dissension and conflict marking governance in the pandemic (Lewis, 2021). Public health commentators have argued that failures in pandemic management are failures of trust in government officials. John Barry, the eminent

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historian of the 1918 flu, argued that the lesson from that earlier pandemic was that governments have to tell the truth when managing a pandemic (Barry, 2004; Van Bavel et al., 2020; Christakis, 2020). As a historian, Barry connected mistrust of the government during the 1918 pandemic to the First World War. The federal government brooked no criticism of the war effort, and suppression included President Woodrow Wilson’s outright refusal to mention the pandemic (Barry, 2004). Barry’s book on the 1918 flu provoked the George W. Bush administration to organize a plan for managing a pandemic (Charatan, 2005). President Donald Trump disbanded this effort in 2018 (Christakis, 2020: 155). In Nature Human Behavior, scholars added leadership and combating misinformation as necessary to managing a pandemic (Van Bavel et al., 2020). These scholars’ focus is on the national government and public health officials. If pandemic relief fails some businesses, parties and state officials use a pandemic to sow mistrust and division about voting, and courts interpret public health measures, voting, and insurance claims, all the uncertainty that multiple cases sow contributes to mistrust, which exacerbates mismanagement. No public health writer argues that COVID-­19 is either the worst or the last of the pandemics the world will experience, and that belief aligns with the GHSI's message. Though no one can set a timeline, the fact that people live closely with each other and with wildlife and undertake frequent global travel leads to the conclusion that the wait for the next pandemic might not be long. Whether or not the next pandemic arrives soon or even emerges from mutations in the coronavirus causing COVID-­19, everyone believes that recommending how to handle the next pandemic is the right thing to do. Public health writers describe management by public authorities as central to a pandemic (Baldwin, 2021; Christakis, 2020). Yet the organizations that manage were not at the center of analyses that recommended improving public health by engaging in vaccine diplomacy (Hotez, 2021), fighting disinformation, or leading by demonstrating safe behaviors (Van Bavel et al., 2020). Institutions mediate what people do, however, and those institutions reach well beyond public health officials. The writers and journalists working in the early days of the pandemic linked the pandemic to a changing climate, but they did not tend to link it to how societies govern in climate-­related disasters. Circumscribing the “window” of the pandemic to exclude governance leaves out how and why recommendations public health writers see as sensible, about trusting officials, or following good communication practices, fail. The institutional mechanisms for responding to and managing risks lie outside the scope of public health.



What Are Disaster Cascades? 37

They do, however, fall squarely within understanding the context for state and local governments and advocacy groups. As officials strove to manage public health in the pandemic, public health writers did not follow COVID-­19 into the other disasters the pandemic intersected with, or even into other institutions, and the divisions that had long been underway. Instead, they linked their observations to other public health management efforts and threats. Historian of disease Peter Baldwin linked the pandemic backward in time to other epidemics and to disease definition and management (Baldwin, 2021). Hotez linked it to NTDs. Yet linked disasters themselves make responding to a pandemic more difficult. Fleeing fires and hurricanes can require congregate housing, but that is riskier in a pandemic, for example. In the 2021 deep freeze in Texas, people shared housing despite the increased risk from the pandemic, and each problem exacerbated the other (Clark-­Ginsberg et al., 2021). In turn, governing in the United States during a disaster includes insurance, and limited access to insurance after a disaster can exacerbate inequality (Baker and McElrath, 1996; Beck, 1992; Sawada and Yoshido, 2017). Insurance companies denied claims made by businesses closing during the pandemic under state orders, which were made under “business interruption” provisions. Some business owners filed lawsuits about these denials. What are the implications for our purposes? Tracing the pandemic through these other disasters and through governing officials other than public health officials leads to the uneasy conclusion that institutions, which groups can turn to their own purposes, can serve as components in complex, tightly coupled systems, which can amplify disaster. If Perrow (1984) is right, and complex, tightly coupled interdependent systems fail in ways that are unexpected or difficult to predict, then better management of something that is intrinsically unsafe will not solve the problem. With no one manager, and people able to take complaints about management to multiple, fragmented institutions, tracing missteps by leading actors does not exhaust the potential to amplify problems. Public health writers built from the experience of the early pandemic to speculate about potential long-­term changes in how people live, and how these changes could set research priorities. More than two years into the pandemic, some of these speculations have served as an unintended reminder that trying to predict the future is not always helpful. Peter Baldwin suggested that the pandemic, which disproportionately burdened women, could lead to a more equal division of labor (Baldwin, 2021: 263). Nicholas Christakis argued that people might believe experts more after the pandemic, and that

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this greater general belief could spill over into helping manage climate change after the pandemic’s end (Christakis, 2020: 293). To be fair, Baldwin and Christakis published quite early in the pandemic. Their forecasts drew on individual or mass behavior, not on institutions. Still, little about the partisanship and opportunities in multiple institutions in the United States, which are well outside the control of even well-­meaning public officials, would have led anyone who considered it to conclude that the United States would come together more as a nation during this disaster. Other speculations, however, could hold up better over time. People might use green spaces more, rely on more takeout food, and work from home more often. These are all individual-­level changes in behavior, and the institutions that structure these individual changes are invisible. The legal rules that make one decision likelier than another remain in the background when speculating about individual behavior. Disasters can reveal connections among people, events, and institutions that are often not visible (Latour, 2005: 79–81). Structures appear less stable when fault lines in disaster offer opportunities to challenge them. In Perrow’s discussion of complex interconnected systems, he takes a more pessimistic tone than those who wrote about management missteps early in the pandemic, including Lewis, Baldwin, and Christakis. Perrow wrote when the United States was struggling over how much to rely on nuclear power, an example of a complex tightly coupled system. From his point of view, complex tightly coupled systems will fail, and some failures will be catastrophic. Even if such failures are uncommon, he argues that they are normal or should be expected, precisely because they are designed into tightly coupled complex systems. For Baldwin and Christakis, missteps can guide corrections for the next time; and diagnosing management missteps helps us understand how to avoid making them again. To Perrow and Black Swan author Taleb, however, the systems themselves are fragile (see also Beck, 2010). Perrow argues that adding fixes to complex systems is likely to add further points of failure and more unknown interactions. If we add into this equation points he excluded, such as how much these systems depend on a functioning system of social reproduction, then the complexity and points of failure loom even larger. Complex, tightly coupled systems are the problem. Their very complexity, though, broadens the number and kinds of people who must count as participants. Expanding the pool of participants could then allow more or new points for intervening (Roe, 1994).



What Are Disaster Cascades? 39

Conclusion Public health writers appropriately write as though the sole goal for all officials is to manage public health. Failures to gain agreement on masking, to close public places, and to supply adequate personal protective equipment, were—in this view—failures in protecting public health. Therefore, for public health officials, they were problems to be fixed, and anyone would agree they needed to be fixed. Christakis summarized this perspective when he wrote that after the pandemic, perhaps people would believe scientists more readily (2020). Not everyone’s goal is to protect people via public health measures, though. Political incentives to decry masks and social distancing became increasingly evident as the pandemic ground on. Interests that had been organized well before the pandemic looked to expand or consolidate political power during this moment, as the Republican Party did in Wisconsin when litigating voting in its April 2020 election. Like all disasters (Klein, 2007), the pandemic offered a political opportunity. In the United States, expanding political power in Republican states included pursuing the long-­standing goal of limiting liability for injuries. Mobilizing complaints about restrictions on religion or business also held political appeal. An initiative across states to restrict democratic accountability by limiting voting blossomed during the pandemic, following previous successful efforts to restrict voting by state legislation (Hertel-­ Fernandez, 2019). Individuals trying to prevent their businesses from shutting down permanently had to obtain assistance either from the federal government or from private insurance. The pandemic did not create these political problems, and it did not define the place of courts in inequality or within political divisions. It afforded more opportunities to extend or expand power, however, in a world where interest groups and parties already had the resources to make claims—and where individuals had resources to ask for compensation. And although public health writers agreed on the importance of trust, they did not link public health and mistrust to the courts that heard complaints, though there was every reason to link the two, given that complaints ranged from the insurance companies’ refusals to pay business interruption claims to church and business closures to questions about mass incarceration as a threat to health. That gap in the analysis is where this assessment comes in. My focus is the claims people made related to the pandemic, and, where possible, what courts did in response to these claims. I leave it to others to link these institutions to individual-­level mistrust.

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One disaster led to the next in the pandemic, and each amplified the other. The Guatemalan construction workers who experienced high rates of infection in Florida worked in a changing climate after having immigrated to the United States. Many lived in multigenerational households, thereby increasing the risk of spread. Governor Ron DeSantis designated these construction workers as essential workers, so they could not stay home to limit the spread. He was working with an eye to national party politics as well as conditions in the state, and early decision making was done under uncertainty. In choosing construction over the health of the families of construction workers, the governor aligned himself with President Trump (Kapucu and Moynihan, 2021). Finally, in enacting legislation that limited liability for employers, Governor DeSantis and the Florida state legislature acted on a key priority for the working group on civil justice of the American Legislative Exchange Council (ALEC). The most active conservative interest group powerhouses in the pandemic are powerhouses outside the pandemic as well. The disaster cascade includes interest groups and parties mobilized to sue and to propose legislation that advances a long-­term political agenda. Relationships and institutions are part of care work in a pandemic and other climate-­related disasters. These relationships include an important question: who counts as worth protecting? They also include the care labor that many people must undertake, so that, for example, construction workers can show up to work each morning. Living without affordable child care or reliable schooling in a pandemic threatens well-­being. The care work necessary to keeping daily life going did not appear in writings about public health and climate change or about the complex links between them. It rarely appeared in court cases. The disproportionate impact of the pandemic on caretakers, and the resounding silence in early general books and reports, is so significant to what has been lost in the pandemic, and therefore what is being lost in a changing climate, that understanding disaster cascades requires integrating this subject. The Bush administration’s pandemic management report had recommended closing businesses and schools early in a pandemic. Lewis concluded that this measure is essential to managing future pandemics (Lewis, 2021). Neither figures out how countries might support work and family care in what could be frequent short shutdowns. Ignoring who cares for families, and who pays the costs of losing work, is untenable. Inexplicably, the public health writers who speculated about how the pandemic would change future living patterns said little about caretaking responsibilities and shutdowns.



What Are Disaster Cascades? 41

Tightly coupled systems include the people required to produce electricity, or dams, or scientific analyses of the failure of both. The people who produce infrastructure, including by delivering groceries, also raise children and connect people in community. Communities raised them. Without broadening the definition of systems to include the whole lives of people working in these systems, the links among COVID-­19, work, schooling, fires, heat waves, and failed levees can only be taken as loosely connected, if affiliated at all. Relying on private, individual solutions to care for children, with women taking on the major responsibility for care, has been the dominant public policy position during the pandemic in the United States. Leaving care work to ad hoc accommodation puts the burden of a collective need—raising the next generation well—onto individuals. Relationships among people—parents, teachers, the incarcerated—and between people and physical hazards—freezes, fires, rainstorms, viruses— undergird disaster production and response. Tracing how our systems produce disasters and respond to them, though, requires integrating everyone, including governing institutions. In tightly coupled systems, problems amplify across governance. In a cascade, events follow pathways with feedback loops. The pandemic arrived with a political party that controlled national governing institutions without commanding a majority of votes or support in the polls (Hacker and Pierson, 2021). Minoritarian control is an ongoing problem in state legislatures in the United States (Seifter, 2021). These are the state legislatures considering limits to liability for businesses in the pandemic or more favorable insurance rules. Prisons are overcrowded, so much so that the U.S. Supreme Court held that overcrowding in California prisons violated the Constitution (Petersilia, 2016). Since states rely on prisoners as firefighters, the risk of the rapid spread of a virus in prison also poses a risk to a state’s supply of able-­bodied people to fight fires. In the United States, Western states have experienced severe fire seasons lately, each more damaging than the last, which are linked to a changing climate, neglect by utilities, and poor forest management. COVID-­19 in prison threatened people’s health, prison management, and states’ firefighting capacity. The California governor and legislature especially cared about firefighting capacity because California faces such severe fire seasons. Following the trail of a disaster cascade, then, brings its interactive complexity to light. There is no one site for the problem; the disaster is a way of moving across sites and scale in governing, and is subject to multiple descriptions and timelines (Knowles and Loeb, 2021). It travels through and among interest

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organizations, legislatures, the governor, forests, and incarcerated people themselves. If we think of a disaster as limited to a single place, virus, institution, or event, we miss the nature of what disasters in the twenty-­first century will continue to be. Climate change and climate-­related disasters turn the whole world into a system, even if how people experience it varies. Disasters are now commonly described as systems failures (Beck, 2010; Hagen, 2021). Problems that may once have emerged within loosely coupled systems are now more likely to be problems that amplify across subsystems. Subsystems is a cold term for the people whose work governments have named essential, those who showed up, those who lost work, those who managed public health, and those who cared for family members. Naming the people and institutions reminds us of the life they have.

CHAPTER 2

Democratic Backsliding and Litigation

T

he state of Wisconsin had scheduled primary elections for April 7, 2020, less than a month after the World Health Organization (WHO) had declared COVID-­19 a global pandemic. On that date, voters would also select a state supreme court justice and multiple other judges and members of school boards. Usually, such state-­based elections do not receive national media coverage or intervention by national political institutions. But this election was occurring in a pandemic, in a state with outsize importance in presidential elections, with a Democratic governor and Republican legislature, and at a time when many states had found multiple innovative ways to restrict voting. In-­person voting would threaten to spread the virus, especially with long wait times expected because in-­person voting sites were few. Requests for mail-­in ballots had surged in March, after the WHO declared a pandemic. By late March, many voters had not received the mail-­in ballots they had requested. The Democratic National Committee and pro-­voting groups such as the League of Women Voters and Souls to the Polls filed suit against the Wisconsin Election Commission, asking that the court extend the election date. The district, or trial, court ordered that the state accept ballots mailed after April 7 as long as they were received by April 13, the date the parties had agreed on as the deadline for receiving ballots. On April 4, the Republican Party appealed to the U.S. Supreme Court for a decision that would prohibit extending this postmark deadline. On April 6, Governor Tony Evers of Wisconsin, a Democrat, issued an executive order suspending in-­person voting until June. He relied on his emergency powers, decreeing that the pandemic made in-­person voting unsafe. An emergency decree in a pandemic did not settle the issue; disasters happen amid a dense network of rules and opportunities to litigate, as Nasser

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Hussain argued (2007). The Republican state legislature took the governor to the state court. The Republican National Committee took the Democratic National Committee to the United States Supreme Court. The very same day, April 6, both the Wisconsin Supreme Court and the U.S. Supreme Court decided cases about the April 7 Wisconsin election. Wisconsin was a contested state in a presidential election just seven months away. Only a few thousand votes either way could make a difference in whether the state’s electoral votes went for the Democratic or the Republican candidate. With the outcomes in many other states obvious from the outset, Wisconsin had an outsize role to play in the November election, and probably in subsequent elections. With the governor and the legislature aligned with different parties, a special springtime election for a state supreme court justice quickly assumed national significance. Understanding the significance of the Wisconsin case required knowing that mail-­in ballots, which extended access to voting, had become partisan (Niebler, 2020), and that many people had not yet received these ballots. An attempt to require that voters turn in all mail-­in ballots by April 7 signaled little accommodation for voting in a global pandemic. Opportunistically extending voting restrictions need not depend on big acts such as redrawing congressional districts or legislating to require voter identification laws, as some states had already been doing (Grumbach, 2022). Instead, it only required already attentive institutions, including state legislatures, governors, and parties, to take advantage of the recommendations against gathering together during the pandemic to discourage voters. Voting deterrents included slow mail-­in ballots, long wait lines for voting, and fears about the spread of COVID-­19, all of which were likely to increase the use of mail-­in ballots. The two courts decided Wisconsin’s emergency petitions on a very tight timeline, without a full argument. To obtain an injunction, a complainant must claim that an irreparable harm would happen if the court does not issue the injunction. They also must claim they are likely to win in a full hearing in the court and that an order would not be against the public interest. In the U.S. Supreme Court, increasing numbers of cases in recent years have been decided under these procedures, which do not allow for a full hearing. These cases have become common enough they have gained their own name: the court’s “shadow docket,” discussed later in the chapter. Because the courts decide such applications on short notice, there is little time for friend of the court (amicus curiae) briefs, which are otherwise an ordinary practice



Democratic Backsliding and Litigation 45

in Supreme Court cases. Interest organizations on multiple sides of an issue submit these briefs, or arguments, to the court. They take time to prepare, and they allow organizations to publicize their concerns. Emergency petitions do not generate the rich array of documents and arguments that court watchers have become accustomed to. Governor Evers lost in the Wisconsin Supreme Court (Wisconsin Legislature v. Evers, 2020). The court held that the governor’s emergency powers did not include the power to change the election dates. In dissent, Justice Ann Walsh Bradley described the decision as “nonsense,” (Wisconsin Legislature v. Evers, 2020: 6) citing legislation that allowed the governor to issue emergency orders to protect “persons and property.” She argued that modifying election dates in a pandemic was well within the governor’s emergency powers. Justice Bradley put the decision squarely alongside earlier decisions from the state supreme court that limited voting (Wisconsin Legislature v. Evers, 2020). The Democratic Party lost in the U.S. Supreme Court (by five to four) on the same day, April 6, 2020; this was the day before Wisconsin’s primary election. The case, also about Wisconsin’s processes (Republican National Committee, et al. v. Democratic National Committee, et al., 2020), arrived after the federal District Court, the trial court, had ruled that the state could extend the postmark date for mailing in ballots. The case was the first in the U.S. Supreme Court connecting the pandemic and government orders. Of the five justices who voted against the Democratic Party, two had been appointed by President Trump. The contentiousness of Supreme Court appointments ties these cases concerning voting in a pandemic, and the democratic backsliding they are part of, to judicial appointments. Justice Ruth Bader Ginsburg wrote the opinion for the four dissenting justices. She closed by writing: “Either [voters] will have to brave the polls, endangering their own and others’ safety. Or they will lose their right to vote, through no fault of their own. That is a matter of utmost importance—to the constitutional rights of Wisconsin’s citizens, the integrity of the State’s election process, and in this most extraordinary time, the health of the Nation” (Republican National Committee, et al. v. Democratic National Committee, et al., 140 S.Ct. at 1211, 2020). Ordinarily a special election about primaries, judges, and a state supreme court justice in one state would not gain national coverage. But COVID-­19 afforded a new opportunity to restrict voting. The pandemic, a disaster, cascaded with partisan divisions over the opportunity to vote to amplify mistrust in institutions. Outcry over voting restrictions,

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divided by party, turned a state election in Wisconsin into a national cliff-­ hanger about mail-­in ballots, foreshadowing conflicts that would unfold in the November general election. Why include an account of legal challenges in Wisconsin state elections in a book about the pandemic as a disaster cascade? In this chapter, I argue that the pandemic permitted an increase in opportunistic efforts to limit democracy in the states. Efforts to restrict voting are one element of what has been named “democratic backsliding,” as discussed later in the chapter. Democratic backsliding names piecemeal erosion of democracy. It captures restrictions that have spread across the states in the United States, no one of which dismantles democracy (Grumbach, 2022: 168–169). State legislatures may initiate legislation restricting voting, and state legislatures are the institutions that come to mind when thinking of state policy. However, courts can interpret statutes and constitutional provisions to protect democracy or expand restrictions. They too have been players in backsliding. Pushing against the boundaries of rules and institutions (sometimes by aggressively interpreting constitutional terms) has been named “constitutional hardball” (Levitsky and Ziblatt, 2018: 109, citing Mark Tushnet). Leading scholars of pathways for declines in democracy Stephen Levitsky and Daniel Ziblatt cite efforts to capture courts as one part of constitutional hardball; the results can be decisions that please people in power (2018: 78–79, 109–110). Assessing court cases in the pandemic requires linking them to American political processes. The Republican Party has not just been focused on voting; it has also made federal judicial appointments key to its electoral strategy, putting judicial appointments at the heart of attracting Christian conservative voters (Ziegler, 2022). Voting restrictions and judgments about pandemic measures demonstrate that the party is consolidating power and the courts are successfully advancing its agenda. For many Republicans, Christianity and policies supporting Christianity are at the heart of what they want. Litigating to declare the importance of religious exercise brings together religion, judicial appointments, and litigation. A conservative Christian legal movement, which has developed from the 1980s onward, brings cases to advance the priority of religion in the law. A pandemic that brought about multiple state-­ level orders and accommodations—for voting, for closing places of worship, for orders about masking—was ripe for litigating. This chapter will link democratic backsliding with the Christian conservative legal movement that found opportunities to litigate symbolically significant issues in the pandemic. These amplified problems become visible in



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court cases, as tracked in the aggregate even more than when taken case by case. Following cases takes the pandemic well beyond public health as officials and commentators define it, and well beyond the key figures and players in the federal government. Political officials amplified existing divisions in the United States over religion, expertise, and public health. Some of that amplification happened in court. Judges and justices interpret restrictions on voting and, in the pandemic, challenges to public health measures. COVID-­19 is inextricably connected to existing polarized governance, including limits on voting, the power of conservative litigators, and the success of promising judicial appointments to an electorate.

Democratic Backsliding and a Politics of the Judiciary The pandemic unfolded during a presidential campaign culminating in a national election in November 2020. Governance during the election exacerbated preexisting disagreements over restrictions on voting—disputes that had shown up in the states in previous years. The decisions from multiple institutions may not, by themselves, constitute abandonment of democracy or constitutional rules. Yet requiring in-­person voting in an election in a pandemic certainly restricts voting, aiming to suppress voting by relying on people’s fears along with refusing the governor the authority to alter voting practices. Scholars have sought names that could capture the incrementalism of restrictions and revised practices that, when viewed cumulatively, add up to real challenges to democracy. “Democratic backsliding” captures restrictions on voting, at a minimum, as restrictions on a central democratic practice (Grumbach, 2022: 12). “Constitutional retrogression” (Huq and Ginsburg, 2018) and the hardball that Levitsky and Ziblatt discuss capture declines in a wider range of practices that challenge constitutional democracy: the push on the rules and conventions, the search for appointees to multiple government agencies who are loyal to a leader (Fishkin and Pozen, 2018; Levitsky and Ziblatt, 2018). These names sum up different aspects of wide-­ranging initiatives to control political institutions and outcomes to limit democracy, no one instance of which adds up to a full takeover by a single individual or party. These commentators converge around a core argument: in today’s world, authoritarianism manifests not as a single takeover or coup, but as incremental steps leading away from constitutional and democratic accountability to an electorate (Huq and Ginsburg, 2017; Levitsky and Ziblatt,

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2018; Hollis-­Brusky and Parry, 2021). Limiting ballots by taking advantage of the local politics of the surge in demand for absentee ballots and the slowness of the postal service in a pandemic constitutes just such an incremental change; so does a court that goes along with it. Whether or not a given court would favor one party or another, the overall result cannot be hard to discern: one party intends to make it more difficult to vote. The pandemic became an opportunity to extend or contest democratic backsliding, efforts that—in Wisconsin as well as other states—remained closely tied to the opportunities practices on the ground afforded. To some, arguing about democratic backsliding might seem a luxury during a life-­or-­death event such as a pandemic. Why bring democracy or climate change into a public health emergency? But linking issues is more critical now than ever. A democratic way of managing a pandemic is necessary, and could be a route to better health outcomes and an enriched democracy next time (Allen, 2022). Litigators saw opportunities in the pandemic and pursued them. The American Legislative Exchange Council (ALEC) could pursue its strategy of offering antiliability legislation to the states—and it did. Courts hear complaints about what is not working for someone. Their work continued in the pandemic, revealing both the bureaucratic mundane, which is difficult to mobilize voters around, and the symbolically significant. Restricting voting in the United States has primarily been the initiative of the Republican Party, which has good reasons to try to restrict voting and encourage mistrust in election integrity—another of its tactics during the pandemic, which concerned the 2020 presidential election. In the pandemic, 264 of the more than 500 cases filed concerning the 2020 election before Election Day concerned contests over mail-­in ballots (Coronavirus Health Election Tracker, n.d.; Stanford-­MIT Healthy Elections Project, n.d.). These case filings fit with the rhetoric of then-­President Trump, who repeatedly claimed that many mail-­in ballots were fraudulent. No court held that they were, and the president’s lawyers were disciplined for filing frivolous lawsuits. Still, the sheer number of cases filed could contribute to mistrust. The national election cases were presaged in the April cases from Wisconsin. Legislation leads as a strategy to restrict voting, even as the courts offered opportunities to pursue restrictions in the pandemic. Political scientist Jacob Grumbach measures declines in democracy in the states, which he names “laboratories of democratic backsliding” (Grumbach, 2022: ch. 7). To measure the extent of this backsliding, Grumbach deliberately chooses a narrow definition of democracy that everyone tracking democracy could agree on,



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largely concerning voting and including some measures of civil liberties (2022: 163–165). The indicators he relies on include measures of gerrymandering and impositions on access to voting, including the disenfranchisement of people convicted of crimes, limited access to absentee ballots, and limited numbers of polling places and hours to vote. In all, he relies on sixty-­one indicators (2022: 164). He recognizes that liberal democracy can include much more than access to voting and some civil rights. He includes incarceration rates and the correlate restrictions on voting states impose on convicted p ­ eople; both are central to repression and largely conducted through the states (Grumbach, 2022: 169; see also Gottschalk, 2013). A broader conception of a liberal democracy would include multiple protections for civil rights and measurements of economic inequality. Restrictions on voting proliferated in the states between 2010 and 2018, his period of study. He finds that states controlled by Republicans restricted voting more than states controlled by Democrats did. He argues that restricting voting did not vary by demographics within the states. Rather, Republican Party control of legislatures and governors led to greater restrictions on democracy (Grumbach, 2022: 12–14, 189–194). ALEC, the organization that proposes conservative model legislation for states to adopt, had made voting restrictions a signature effort in the states after 2010, which can account for the similarities of legislation across states (Hertel-­Fernandez, 2019). Backsliding captures the incrementalism of limiting democracy through multiple restrictions on voting. Wisconsin and North Carolina experienced the greatest expansion in restricting voting of any of the states between 2011 and 2018 (Grumbach, 2022: 170–171). States could find creative ways to entrench partisan control to undermine voters’ decisions. In 2016, for example, North Carolina’s outgoing Republican governor decided to take powers from the incoming Democratic governor (Grumbach, 2022: 152; Robertson and Kinnard, 2016), including changing partisan control of the state board of elections. Disputes were ripe for court. And as noted, Wisconsin’s contests over voting in a primary and special election made it all the way to the U.S. Supreme Court. In an analysis complementing Grumbach’s assessment of democratic backsliding, the legal scholars Aziz Huq and Tom Ginsburg name threats to rights-­respecting liberal democracy as “constitutional retrogression” (2018: 83). They argue that countries lose their democracies not through a coup or military takeover, but through decisions by elected leaders that restrict the scope of oversight, which reaches beyond limits on voting. They explain: “The incremental erosion of liberal democracy’s institutional and social premises

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typically yields forms of concentrated state power immune from democratic oversight. The degree of concentration or immunity from democratic control, though, may be less than would be achieved through a coup or an emergency declaration” (Huq and Ginsburg, 2018: 118). The elements defining retrogression here include the centralization of power and the executive’s act of extending control of institutions that could otherwise check government power. Courts can extend executive or legislative control or check power, extending or refusing to extend partisan control. Democratic backsliding is a way to hold onto power for a party without an electoral majority. The Republican Party has a problem retaining power through elections: the leadership’s policy preferences for low taxes do not benefit enough voters to win national elections (Hacker and Pierson, 2021). Restricting voting could help a party to win, whether by crafting legislative districts to favor the party or enacting voter identification laws (Grumbach, 2022: 182), or, in a pandemic, limiting a governor’s powers to change election administration to expand voting. Another way to win if tax policies are unpopular is to appeal to voters based on something else, something that activates voters who might not be the main beneficiaries of tax cuts. For religious conservatives, judicial appointments are a central issue, and have been for many years. High-­profile decisions about constitutional meaning from the U.S. Supreme Court signal whether that policy is succeeding or not for an electorate. Pursuing gains in court that appeal to an electorate affirms that judicial appointments were the right route to protecting the rights that conservatives argue are under threat. In the meantime, though, judges hear less publicly notable (and often more difficult to understand) cases about immigration, disability, and business regulations. Conservative litigation groups and conservative groups advocating legislation to state legislatures have worked on all these issues. The cases may be of little interest to an electorate, but they set the stage for succeeding in advancing anti-­immigration or antiregulation interests. Appealing to people with judicial appointments, court decisions, and restrictions on voting is especially valuable for a party when its leadership or voters see their side as correct but in the minority. When deciding about the Constitution, courts promise decisions about right and wrong, and they affirm political identities. Political scientist Liliana Mason has argued that people increasingly see their party affiliation as congruent with multiple other identities, including race and religiosity. People who identify as Republican are more likely to be white, to attend religious services regularly, and to identify



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as Protestant than are those who identify as Democrats. Mason argues that the significance of social identity and social polarization promotes anger and demonizing the other party. These emotions activate voters. People want to win against those they see as on the other team; the desire to win motivates decisions more than policy positions (Mason, 2018: 76). Policy preferences do not lead individuals to support a given party. Instead, they follow the party support (Mason, 2018). The politics of constitutional decisions in the Supreme Court are well suited to announcing winners and losers and to appeals based on identity. Constitutional amendments can be readily summarized in a few words: the First Amendment, freedom of speech, the free exercise of religion, equal protection. High-­profile decisions from the U.S. Supreme Court on the meaning of the First Amendment’s clause protecting the free exercise of religion stand out far more readily than do individual cases about insurance. Since taking a case to court requires expertise and money but not a majority of voters, a party that litigates and wins in court can garner support from committed voters without having to expand its appeal to a broader swath of voters. Those who litigate against public health measures by claiming that these policies conflict with constitutional rights can—if the litigation proves successful—announce victory in support of these constitutional rights, which is a measure designed to earn approval from Christian evangelical voters. Visible court victories on issues concerning women’s reproductive health, restricting access to voting, and declaring public support for religion all declare that the voters supporting the Republican Party should elect Republicans. The very remoteness of the distant Supreme Court, the abstractness of principles, and the lack of immediacy for people who may not act on the rights a court declares contribute to their significance as political symbols (Edelman, 1985). No one had to be certain that lawsuits would lead to desired support in order for them to be worth trying, especially when the interest organizations already possessed the resources and experience to bring lawsuits. The states have also served as the grounds for other significant legislative initiatives that are relevant to rich measures of liberal democracy, commonly used in comparative politics scholarship, including promoting civil rights and liberties and overcoming economic inequality. Since state law governs so much—state governments imprison many more people than the federal government, for example—the states deserve more attention than they typically receive (Grumbach, 2022: 6–11). Civil rights and liberties, inequality and disenfranchisement are all relevant to initiatives that include courts as actors, including mass incarceration and the effort in the pandemic to free people

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from prison, as well as legislating to limit employers’ liability in the pandemic. Litigating flashpoint principles and the multiple injustices of mass incarceration required a litigation infrastructure that had long predated the pandemic.

Litigation for Change: Ideas in a Polarized World Members of the conservative legal movement have made the states as well as the federal government key sites for their work. In the United States, the “troika” of leading influential conservative advocacy groups consists of the State Policy Network (SPN), ALEC, and the Alliance for Prosperity (Hertel-­Fernandez, 2019; Skocpol and Hernandez, 2016). Corporate membership dues, family foundations, and the Koch brothers, Charles and David Koch, fund ALEC (Hertel-­ Fernandez, 2019; Kotch, 2021). The Koch brothers also fund the Alliance for Prosperity (Hertel-­Fernandez, 2019). The SPN, founded in 1992, holds annual meetings and links organizations across the states to share information; many of the members are state-­based policy think tanks (Dagan and Teles, 2016; Hertel-­ Fernandez, 2019). SPN affiliates are members of ALEC and sometimes serve on its policy-­specific task forces. The Federalist Society, a member of the SPN, is itself a powerhouse for conservative legal ideas in the United States. Founded in 1982–1983, the Federalist Society has nurtured conservative law students through law school chapters (Teles, 2008; Southworth, 2008). It has also vetted nominees to the federal judiciary under Republican presidents (Hollis-­Brusky and Parry, 2021; Hollis-­Brusky, 2015). Funding by conservative donors to law schools has fostered antiregulation scholarship, sometimes under the Federalist Society umbrella (Hollis-­Brusky, 2015; Teles, 2008). Conservative donors have funded training programs and stand-­alone conservative law schools (Wilson and Hollis-­Brusky, 2020), as well as organizations that litigate. Just as the states have led initiatives to restrict voting, conservative advocates have turned to the states to extend conservative legal ideas, including in the pandemic. Sometimes the work shows up in familiar forms, such as taking cases to the U.S. Supreme Court or enacting legislation. At other times, however, organizations disseminate ideas, legislative or otherwise, and file complaints in lower courts that an organization might never pursue to appellate courts. The powerhouse in the Christian conservative legal movement is Alliance Defending Freedom (ADF) (Hollis-­Brusky and Wilson, 2017). The ADF brings cases concerning the free exercise of religion, a set of issues appealing to the conservative Christians that Liliana Mason (2018: 33) identifies



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when describing Republican political identity. Anyone with the resources and knowledge can file a lawsuit, so self-­identified conservative organizations, including Christian conservatives, are not the only ones bringing suit on behalf of conservative causes. The ADF began as the Christian right ascended in the United States in the 1990s. Rejecting secular foundations for law (Hollis-Brusky and Wilson, 2020), the ADF sponsors the Blackstone fellowship program, which selects students from mainstream law schools and trains them to bring Christian perspectives to their legal work. The ADF participates in secular antiregulation cases as well. The two movements are intertwined. The ADF filed a friend of the court brief in Citizens United v. FEC (2010), the election finance case often cited for opening the way for more money to flow into electoral politics. The lawyer who initially worked on Citizens United, James Bopp, had spent his career working on antiabortion model legislation for the states, and litigating against campaign finance restrictions. Another conservative litigation group, the Institute for Justice, was founded in 1991. The Koch brothers gave it seed funding (Ziegler, 2022). Litigation to establish constitutional rights had once largely been a left-­ liberal project in the United States, beginning in the early twentieth century. The iconic American Civil Liberties Union (ACLU) and the National Association for the Advancement of Colored People (NAACP) Legal Defense and Education Fund pursued racial equality and civil liberties through litigation. Both the Constitution and statutes ground litigation. Environmental litigation organizations worked in the 1960s and 1970s to expand interpretations of environmental statutes. Currently, environmental organizations in both the United States and Europe pursue environmental protection in court (Vanhala, 2018) and liability for wrongdoing by oil companies. In the United States, organizations have also sued to try to shut down coal-­fired power plants. They have succeeded in part by arguing that the plants are not following the laws passed by Congress (Dillen, 2020). These arguments lean on technical language and contests over how to interpret it. Like the language in contracts, the language in statutes is seldom inspiring and does not touch on the social identities that divide people by party. But the language of human rights and wrongdoing by oil companies is inspiring, and lawsuits filed against governments on behalf of children and their future do gain press coverage (Setzer, Silbert, and Vanhala, 2022). Conservative strategic interest litigation groups were established years after the early twentieth-­century founding of left-­liberal groups. Corporations and manufacturing associations had long pursued court cases challenging economic

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regulation, at least from the rise of the railroads in the nineteenth century. The newer conservative litigation groups pursuing constitutional principles were not only pursuing their material business interest. Founders discussed being inspired by litigation by the NAACP, especially the iconic Brown v. Board of Education. Conservative interest organizations formed since the 1990s have pursued lawsuits as one strategy among many to entrench conservative ideas about religion, equality and property, including in the pandemic. Despite the limits to school desegregation, conservative legal organizations did not learn from the victories in liberal legalism such as Brown v. Board of Education (1954) that litigation fails. Instead, they have not expected immediate instrumental gain. Many are in it for the long haul. Conservative litigators have argued that lawsuits plant ideas and no one can know when or where those ideas will bear fruit. The scholar Ann Southworth quoted a conservative lawyer who argued that the point of the movement was to “change the terms of the debate,” which could take a long time (Southworth, 2008: 24). If pursuing change requires slowly changing ideas, advocates will accept many losses along the way, without knowing what a win or a loss will mean in the future (161). One conservative litigation organization, the Freedom of Conscience Defense Fund, argues that trial litigation is the site for change because most cases do not get to appellate court (Freedom of Conscience Defense Fund, n.d.). On his website, the lawyer who founded it, Charles LiMandri, cites awards he has received from the ADF (LiMandri and Jonna, n.d.). The pandemic has offered opportunities for organizations that are already prepared to litigate. Those who fund litigation without believing it will immediately change governing stand in stark contrast to those who criticize litigation as having limited ability to realize instrumental gains (Rosenberg, 2008). As antiregulation or social conservative interest groups have litigated, they have relied on the argument that began with left-­liberal organizations: that they work for the rights of those marginalized groups that legislatures wrongly ignore. This claim to underdog status echoes in the pandemic cases decided in the U.S. Supreme Court, which are discussed in a later chapter. Claims about the free exercise of religion ring out in principled language from advocacy groups and sometimes the Supreme Court. By way of contrast, civil liberties organizations such as the ACLU worked to obtain prisoners’ releases in the pandemic. That process did not make it to the Supreme Court and did not inspire principled statements about rights that could appeal to a clear constituency. Instead, it moved among advocacy organizations, legislatures, governors, and trial courts, without clear, quotable statements, and without



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any one person or organization responsible for outcomes. Controlling multiple institutions contributes to consolidating a party’s control, and advocacy strategies in the states and in the courts help. ALEC offers model legislation to the states in multiple fields, including against business regulation and in support of limiting access to voting; Republican states have been most likely to take up ALEC’s legislation (Hertel-­Fernandez, 2019). In the pandemic, ALEC advocated and states enacted limits to employers’ liability in the case of illness contracted at work during a disaster, particularly but not only in health care. Legislation writing the rules to limit liability meant the judiciary would have little to work with if someone did take a case trying to hold someone liable for illness, which was unlikely in any event, including at the state level.

Judicial Appointments and Constitutional Hardball

Effective litigation rests on knowledgeable groups and favorable rules, some of which ALEC contributed to writing. Judges hear the cases, though, and a judiciary independent of immediate political influence is an element of the rule of law in a constitutional democracy. At the same time, courts are potentially minoritarian institutions, or they are often framed that way in normative discussions of how to constrain courts in democracies. Legal education and argument explain judges as constrained because they govern by interpreting legal rules and evidence (see, e.g., Rosenberg, 2008), not by fiat, opinion polls, or popular voting. Interpretive strategies, then, are critical to understanding courts’ power, alongside the legal provisions they interpret. Extending control over the courts means extending the control of governing institutions. Ruling by court could mean ruling by a minoritarian institution yet also ruling by appealing to legal rights, whether under a statute or the Constitution. In the United States, historically the justification for courts’ ruling in contentious areas has been that they were protecting and extending rights, particularly for those who had been long disenfranchised, in order to support democratic inclusion (NeJaime and Siegel, 2021). The ambiguity and vagueness of democratic backsliding or constitutional retrogression allow courts to participate in minoritarian control, but to do so through ordinary practices and by still claiming the importance of the rule of law. The national Republican Party has made controlling the federal judiciary a central policy initiative, which is appealing to voters who voted on the basis of conservative Christian issues, including on limiting reproductive health care

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and extending the free exercise of religion (Ziegler, 2022). These are identity issues in the United States: party identification also signals church attendance (Mason, 2018: 35, 37–40) and the importance of publicly affirming religion. The Federalist Society has influenced the courts through developing conservative legal ideas among lawyers and law students and through vetting appointments to the federal courts during Republican administrations (Hollis-­Brusky and Parry, 2021; Hollis-­Brusky, 2015; Southworth, 2008; Teles, 2008). In the United States, making judicial appointments of religious and economic conservatives was the highest priority for the Trump administration and for Senator Mitch McConnell, the leader of the Senate during the pandemic, following the party’s years-­long goal of using judicial appointments as a way of appealing to voters (Ziegler, 2022). By the end of Trump’s term in January 2021, the Senate had confirmed 226 judges to the federal judiciary, compared with the 320 confirmed by President Barack Obama over two terms, and the 322 the two-­term president George W. Bush had confirmed (Gramlich, 2021). The Trump administration appointed two justices to the Supreme Court before the pandemic and one more during it. Each nomination was contentious, and two depended on the Senate having the majority of the votes rather than on previous practices concerning when and whether a president could appoint them. First, the Trump administration filled a seat that was open because the Republican-­led Senate had refused to appoint a justice in the last year of the Obama administration. This seat went to Justice Neil Gorsuch. Second, the Senate voted to appoint Justice Brett Kavanaugh after Justice Anthony Kennedy retired, despite bitter disagreements over the significance of allegations of sexual assault while he was an adolescent made against Kavanaugh, his angry response in the hearings, and the resulting objections of hundreds of law professors and leading lawyers (Marcus, 2019). Third, the administration appointed Justice Amy Coney Barrett to the Court less than six weeks before the 2020 election. Appointing Justice Gorsuch had been possible early in the forty-­fifth president’s term because Senate leader Mitch McConnell of Kentucky had earlier objected to appointing a new justice within a year of an election, thus denying the forty-­fourth president an appointment to the Court. In the third appointment, however, Senator McConnell, who was still the leader of the Senate, dropped his objection to appointing a justice close to an election. Each appointee had long identified as a religious conservative, and they all had been members of the Federalist Society (Hollis-­Brusky and Parry, 2021). Hearings are designed to avoid answering questions about specific issues, instead reassuring senators with a nominee’s biography or statements of belief



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in following the law. Accordingly, the first opinions from these justices drew much attention: rulings would signal how they would vote on questions religious conservatives prized—concerns that would last well after states lifted any pandemic-­related restrictions. Decisions in the pandemic that evoked religion would cast light on the new justices’ attitudes about the importance of religion within constitutional reasoning. The legal status of reproductive health care and what counted as a fundamental right loomed in decisions about religion and the Constitution, even if the justices had no reason to mention these issues in cases about public health measures. Even emergency decisions about voting, like the Wisconsin voting case that opens this chapter, would indicate the priority the Supreme Court would place on health measures in the pandemic. Since 2007, the Supreme Court has decided, on average, seventy-­six cases each year (Ballotpedia, 2019–2020). Those that touch on issues likely to arouse public emotions include cases invoking religion, reproductive rights, and other social issues, including some discrimination cases. That average number of cases, however, understates the number of significant rulings the Supreme Court has issued recently, including during the pandemic. The justices can issue rulings after emergency applications for injunctions, requests to stop an action. The requirements for an injunction stipulate that irreparable harm may happen if the injunction is not issued. These requests have been named the “shadow docket,” as they are heard not in the light of the full hearing the Supreme Court grants to its nonemergency cases each year. The Court decides these cases very rapidly. Because they are requests for emergency orders, there are often very few amicus curiae briefs, or statements from organizations in favor of or against the request. Decisions are issued “per curiam,” or “of the Court,” so the identity of the justice who wrote the decision does not have to be spelled out. Opinions are often short. Other justices can write their own opinions as well, and some justices have. Even these cases are sometimes decided by five to four, where justices divide according to ideological lines, undermining the claim that the decisions are “per curiam,” or clear statements of law by the Court (Hearing Before the Subcommittee, 2021). The Court decided many of the highly charged cases during the pandemic concerning orders about elections or closures as part of the shadow docket. COVID-­19 arrived in the United States when the ADF had been taking complaints to court for many years and ALEC had long been successfully introducing model legislation to the states (Hertel-­Fernandez, 2019). Each could turn to the courts or legislation about litigation to expand the enforcement of

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morals and the primacy of markets. The pandemic offered a new setting for challenging regulation as states limited public gatherings, including gatherings in places of worship. Religious conservatives could see a new setting for taking lawsuits, which could be valuable whatever the outcome. Losing a case still allows plaintiffs an opportunity to advertise their complaint and to accuse political officials, including judges, as unconstitutionally opposed to religion. If they lost the case, the very act of losing would neatly situate these plaintiffs into a broader narrative about hostility to religion on the part of national governing institutions, contributing to the anger and resentment that Liliana Mason (2018: 15–16) argues is an element of social polarization. And winning a case meant, well, winning a case, which would appeal to the primacy of the free exercise of religion while also further establishing restrictions on how states could regulate. The Supreme Court heard three cases in 2020 concerning closing places of worship to manage COVID-­19. I discuss these cases in Chapter 4. Even something as time bound as closing public worship took on multiple embedded meanings, including associations with the symbols of politics from both before and after the pandemic. These meanings touched on life before the pandemic in two ways: one, by demonstrating that new appointees to the Court would indeed see public religious practice as at the heart of their work, and two, by referring back to earlier cases about the status of religious practice in American constitutional law. They touched on life after the pandemic by setting up an invitation for further litigation.

The Long History of Courts in the Pandemic Although a politics of the courts remained central to the Republican administration, courts are not central actors in the earliest books about governing during the pandemic (Baldwin, 2021; Hotez, 2021; Lewis, 2021). Christakis recognized deep divisions in how people experienced the pandemic. At the time when he wrote, the Supreme Court had decided two cases and upheld closure orders in each (Christakis, 2020: 264), a point he noted. For him, the question was how the Court came down on the question of in-­person worship and whether it threatened public health. However, without the context of the contentiousness of courts and constitutional decisions continuing for years, the decisions look like nothing more than episodes, when in fact they are steps in conservative work in the courts that date from the 1980s and 1990s. The possibility of going to court, whether or not anyone would win, amplified



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the divisions that contributed to incoherence in managing the pandemic in the United States. The virus and its spread interacted with disputes over what the free exercise of religion or freedom of speech meant in a pandemic, which courts could address. The pandemic did not cause divisions over free exercise, and the interest groups that brought cases had long predated the pandemic. The pandemic afforded an opportunity, though. The COVID-­19 pandemic and the political organization of religious conservatives in the United States, including appointments to the federal judiciary, interacted to inflame the debate about public safety measures. State and federal courts both heard these cases. The Supreme Court cases are easiest to notice; the justices are national political officials, and appointments to the Court have been contentious. From a public health perspective, the pandemic-­era interventions from the Supreme Court are largely of concern because managers have to manage the pandemic. But for national political officials, litigators, and court reporters, these cases from the nation’s highest court are but one move in a long-­standing, complex match in which the stakes are high: will religious conservatives control the Court, which in symbolism, if nothing else, states the final meaning of the Constitution? And how will the Court reinterpret existing cases about free speech or the free exercise of religion? These cases can be contextualized both within the pandemic and within a line of cases organized around doctrine and repeat litigators. For religious conservatives and their advocates, cases about the free exercise of religion in the pandemic also evoked earlier decisions about how and whether states could regulate places of worship in the law, and how much of a reason they needed to do so. The cases would also be useful in communicating the success of a long-­ standing strategy of appointing religious conservatives to the Supreme Court. That strategy, in turn, forms one element of the constitutional retrogression named by Huq and Ginsburg (2017). Decisions about emergency orders in state courts and religious worship in federal courts also contributed to the mixed messaging that public health officials widely decried as inimical to good public health, which requires trust and a single consistent message.

Conclusion So far, setting the courts in the context of ongoing political divisions and the struggle for the control of institutions implies that only cases with strong interest group support will go to court or, conversely, will be shut out of court

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by model legislation from groups like ALEC. But individual people still have their own complaints, which are pertinent to their own individual circumstances and not immediately related to voting restrictions or the significance of publicly affirming religious practice. The lawsuits that gain national attention typically fit into ideological categories and feature nationally prominent players: the U.S. Supreme Court and religious conservatives. Yet the unfolding story of the pandemic took place on a broader field, in multiple courts, including issues about material losses from business closures and canceled events. Individuals’ and businesses’ claims about losses in the pandemic are among people’s experiences of governance in disaster. Many cases, or threats of cases, concerned business and insurance litigation, which is key to governing in the United States but often neglected in studies of the politics of courts. Insurance is not as symbolically meaningful to a broad public as constitutional cases. People lose livelihoods or save them via insurance, and disaster-­ related risks and insuring against harm are subjects for contests in a changing climate (Elliott, 2021; Sterett and Mateczun, 2022). Insurance companies have promised that insurance companies’ risk assessments will contribute to managing climate change (Collier, Elliott, and Lehtonen, 2021). What the discussions of insurance refer to is insurance about the risks that are most recognized as part of disaster governance: fires and floods. A pandemic that partly results from the same forces bringing about a changing climate also brings about contests over the risks that insurance contracts have included. Around the world, people bring to courts key governance problems that have proven intractable in legislatures, including asylum seeking and immigration (Hamlin, 2014; Sterett, 1997), equality at work (Cichowski, 2007; Kenney, 1992), and conflicts about civil rights (Hirschl, 2004). Courts are places that people seek out when they possess the resources, when legal structures are welcoming, and when they have problems that other institutions have not addressed. In many countries, legal processes that invite litigation are an ordinary part of governing. Some cases also garner publicity that plays into partisan divisions; court cases can amplify rather than resolve disputes. Historical examples in the United States range from human enslavement to school desegregation and reproductive rights. Legislatures sometimes respond to court cases, or to mere threats of court cases. The specter of lawsuits, as in the case of Florida’s legislation prohibiting employers’ liability, animates political divisions in the United States even in the absence of formally filed cases. In one and the same moment, then, the pandemic both revealed common problems experienced by many individuals during the crisis and



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also generated new opportunities for interest organizations to pursue their long-­standing political agendas. And the reasons to file lawsuits ranged from the ideological (pursuing the national priorities of a political party) to the financial (the desire to recover money lost when businesses closed or trips were canceled). How such cases change governance after they are decided, and how successful they can be, are subjects for a lively debate, which has been heightened in an era of a changing climate and ideological pursuits in court. Outlining that debate is the subject of the next chapter.

CHAPTER 3

Courts, Meaning, and Instrumental Effectiveness

T

he pandemic afforded an opportunity for organized interest groups in the United States to pursue their existing goals. Already experienced in litigation on issues core to their mission, these groups included both the left-­leaning liberal groups such as the ACLU, which had long challenged mass incarceration, and conservative groups that had long promised judicial appointments, a greater role for religion in public life, and restrictions on liability. Since 2010, when the Republican Party won control of many state legislatures (Grumbach, 2022; Ziegler, 2022), Republican-­controlled states had taken steps to restrict voting. The pandemic offered new opportunities in each of these fields. What, though, does any of this have to do with climate change? Linking the problems causally is not enough. As we saw in the first chapter, public health commentators did note that climate change was one cause of an increasing risk of pandemics. Thus, mitigating climate harm could be related to a pandemic by reducing risks. That would lead to linking litigating responsibility for greenhouse gas emissions to the pandemic. Litigating about greenhouse gas emissions is indeed a lively field of both litigation and scholarship concerning the politics of the courts, but those are not the cases discussed here. Turning to the multiple lawsuits around the world about greenhouse gas emissions as a way of understanding pandemic litigation and climate change would overlook cases that are much more closely connected to the pandemic. Not only is litigation in the fields discussed in this book more closely tied to the pandemic than cases about greenhouse gas emissions, even if also tied to climate change; complaints that the pandemic generated also open up a different way to see how courts matter: not only as instrumentally effective and



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not tightly focused on one outcome, even if that one outcome is the gigantic one of limiting greenhouse gas emissions to save the planet. Instead, the reach is wide-­ranging and identifies multiple problems, sending a realistic if alarming signal of how much a changing climate will continue to disrupt institutions. Litigation about the pandemic as climate-­related adds to climate litigation as driven by environmental organizations, environmental law, and environmental goals. The litigation in environmental politics usually is intentionally environmental, invoking environmental statutes or human rights claims about environmental justice (Peel and Osofsky, 2015; Sterett and Mateczun, 2020; Vanhala, 2013). None of the litigation about insurance or the Constitution directly have anything to do with emissions contributing to a changing climate. Environmental lawsuits attempting to limit greenhouse gas emissions and thereby limit climate change often rely on change that happens as a result of intentional action brought on by intentionally environmental actors. In courts, this action would entail individual heroic cases that take on all of a complicated problem at once, including greenhouse gas emissions. The context is environmental, not the context of democratic backsliding, the ideological pursuit of protecting religious exercise, or the conduct of insurance, which is itself a key business in a world rife with climate disasters. The heroic quest for this one triumphant case has a knowable goal and outcomes that will be easy to recognize. The legal scholar Kim Bouwer calls this type of quest for a heroic case a “holy grail” (Bouwer, 2018). By “holy grail,” Bouwer means an object questers search for that promises to solve many problems. In climate change, a holy grail case promises to stop the emissions leading to climate change, and to fix multiple damages. Bouwer pursues the metaphor, warning that a holy grail promises so much in part by being difficult to define, and always remaining beyond reach (Bouwer, 2020). The damage and the promise are both so wide-­ ranging that they can be difficult to name with any specificity. On a closer reading, heroic quests that embody the hopes of aspiring environmental litigation reveal ambiguity and uncertainty. Questers need others to get their work done. They may not know what they are looking for, and they may not recognize it when they see it. Cleaning up the mess left in the wake of the damage leading to the quest for salvation takes many people laboring together (Bouwer, 2020). In a changing climate, the damage is here, and cleaning it up happens partly in court. A decidedly unheroic model of understanding litigation in a changing climate eschews the search for the “holy grail” case

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and, instead, gathers together the many cases generated as the pandemic laid waste to people and institutions, whatever courts did with them. In what follows, I lay out these two perspectives in more detail, beginning with the heroic and its limits, and then turning to cascades in courts as more opportunistic and broader in scope. The latter perspective has the advantage of working within existing power dynamics and follows the tactics that litigators have taken—here including cases brought not out of heroism but from opportunities and need. Long reflection across multiple fields has led to the conclusion that this approach asks more of individual decisions than they can accomplish. Thinking of the pandemic as part of a disaster cascade, though, rather than only tied to carbon emissions, brings it into direct conversation with the existing problems that institutions govern and oversee, and to the litigation that these problems brought about during the first months of the outbreak. This chapter brings to the fore discussions of the search for inspirational greenhouse gas emissions cases, their limits, and how broadening litigation governance allows for change without putting all the weight on one case.

Litigation and Instrumental Effectiveness What courts achieve and don’t achieve in the pandemic depends, in part, on what counts as an outcome. At least some of the courts’ significance rests in the simple fact of the cases being brought in the first place—in how their existence served to stir up anger and allocate blame, rather than in any instrumental effects from traditional outcomes. Class action suits were quickly filed against China from within the United States claiming that China had mismanaged the coronavirus and that this mismanagement had led to the pandemic. Even the Missouri attorney general filed such a case (Missouri Attorney General, 2021). Blaming China aligns with how then-­President Trump described the virus; taking on such a high-­profile actor as a nation-­ state signals ambitions within national electoral politics, not ambitions to settle disputes. These cases were not likely to succeed, not least because law exempts nation-­states from being sued much of the time (Anderson and Mirski, 2020). The idea of blaming China has tempted Congress as well. Congress considered a bill that would exempt China from statutes forbidding suits against governments. Everyone participating would know how unlikely



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such a lawsuit was to succeed. A suit against China signals that China, not domestic mismanagement, is to blame, aligning with national Republican Party statements. Experienced lawyers take such an unlikely lawsuit, and Congress considers unlikely legislation to make it possible because the judicialization of politics has become a familiar political tactic—one promising publicity if nothing else. Judicializing politics rests not only with courts but also with those who can claim an actor has committed a legal wrong, whether or not a judge will recognize it. Claims making is out of the control of national officials, so framing decisions and responsibility is beyond their control as well (Alter, Hafner-­Burton, and Helfer, 2019). However unlikely, cases filed against China are eerily reminiscent of cases filed against the oil companies that aspire to hold them responsible for the greenhouse gas emissions that have led to climate change. Both charge prominent actors with causing a worldwide problem that reaches into everyone’s lives in every dimension. For both, a legal claim of wrongdoing rests on the charge that actors misrepresented what they knew and that they used or allowed that misinformation to harm the world. They share a model of courts and change. For advocates, these large-­scale cases promise resolutions. As the United States and other countries have failed to choose systematic policies to manage a changing climate and dramatically cut back on emissions, commentators have held out hope for lawsuits. The lawsuits garnering the most hope are those that would promise to fix everything, in one judgment from a court of appeals. Legal advocates and analysts argue that courts can serve as an antidote to democratic nonresponsiveness to an existential threat. This argument describes analysis of lawsuits about climate change (Vanhala, 2013). The hopeful version only requires a group to see elected officials as nonresponsive, and courts as potentially responsive to what a plaintiff sees as a reasoned argument. It need not have any one political valence, absent successful efforts to pack the courts. The belief in the courts as a place of reasoned argument invites relief from the difficulty of making headway in legislatures committed to partisanship and restricting responsiveness. This fantasy of courts issuing orders that others then follow is a popular image of courts. For their part, fossil fuel companies are unlikely to be brought low by blame from a court. They spread misinformation about what they knew about harm and emissions (Stokes, 2020). If they have managed information flows before, they will do so again. If they reshape evidence and arguments from climate scientists, they will reshape decisions from a court. Seeking out

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a holy grail thus has the unwanted effect of placing the oil companies outside the fields of power in which they operate. Time and again, the politics of governing has showed that there is no place outside where power operates. The promise of a holy grail case about climate change shapes public discussion as well. The writer and comedian Maeve Higgins, speaking on the feminist climate podcast Mothers of Invention, said that if a court would decide about climate change, people would have to follow the decision (2020). She captures a popular dream: that courts would be able to force things to happen when other institutions could not. The dream of the one perfect case, the holy grail, circulates across popular climate activist culture more than stories about insurance settlements for flooded homes do.1 In his 2020 book The Ministry for the Future, the popular science fiction writer Kim Stanley Robinson imagines a better future with reduced greenhouse gas emissions. An agency that he calls the Ministry for the Future is charged with managing the ongoing transition to a more just world that does not rely on fossil fuels. Robinson brings to life a world in which people travel without relying on fossil fuel-­burning jets. United Nations officials still travel around the world, but in slower airships that are environmentally less damaging and that also allow for a quieter, more peaceful experience than the carbon-­fueled hurry of airplanes and airports (Robinson, 2020: 434). Robinson describes his main character as working while she travels; the world he imagines includes as much work time as ever, and more peace rather than disruption to daily life. A recurring plot point in Robinson’s book involves litigation to try to get “standing” granted for the future (Robinson, 2020: 37, 66–67, 144, 376–377, 616–617). Granting standing would mean that the future would have a legal interest that the courts could protect. If the future had standing, Robinson’s tale suggests, whole new horizons open for climate possibilities. The fictional case he describes resonates with a children’s case against thirty-­three countries before the European Court of Human Rights in 2020, which was still ongoing in 2022 (Agostinho v. Portugal, filed in 2020). In the United States, it also resonates with an ongoing case claiming that governments have a responsibility via the public trust doctrine to hold themselves accountable for meeting greenhouse gas emission targets. In early 2021, the Ninth Circuit Court of Appeals dismissed this case, though the judge wrote that the claim was urgent (Our Children’s Trust, n.d.; Juliana v. U.S., 2020). Also in May 2021, the court in the Netherlands ordered Shell Oil to substantially cut its greenhouse gas emissions (Milieudefensie v. Royal Dutch Shell, 2021). In



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response, Shell Oil planned to appeal, in a process that will take years. Transposing the claim for the effectiveness of a court decision to the argument that a case against China will change the pandemic should challenge the idea that a case will be instrumentally effective. The dream that courts will solve big problems by blaming people or organizations in newsworthy rulings thus downplays the drawn-­out nature of most legal processes, which take significant time and often go through multiple partial decisions. While these cases are important for the hope they inspire, they are joined by the countless messes left to clean up in a changing climate. The reality is that it’s not just about winning or losing, even though the opportunity to declare wins and losses in a highly partisan and polarized environment is part of what is attractive about the dream. The search for a case that will solve all climate problems, or that would hold China to account in a pandemic, ignores the limits to what courts can do. It appeals to a popular image of courts as solving problems outside the politics and power that created the problem in the first place—and law never works outside the power structure that has organized it (Moore, 1978). Climate advocates who follow court cases have pinned some hopes on principled claims and clear statements from final courts of appeal. The hope is that these principled claims will blame the fossil fuel industry for knowingly denying climate science and for sowing misinformation (Stokes, 2020). Demonstrating that oil company executives contradicted their internal memos and reports when they publicly claimed climate change was not real could constitute evidence of wrongdoing (Supran and Oreskes, 2020). Evidence of wrongdoing, in turn, leads to claims that continuing to sell fossil fuels was negligent and therefore against the law. Principled claims could also hold governments accountable for not appropriately protecting the future by meeting greenhouse gas emissions targets. For these advocates, this hope that courts’ reasoned practices will lead to holding oil companies responsible reaches to the subject of disasters and the science of disasters as well. Advocates hold out hope for a science that can closely link a disaster and its attendant damage with climate change, a connection that could lead to holding oil companies responsible for effects that are located several links down the causal chain from the emissions themselves. To this end, the Sabin Center for Climate Change Law has gathered together resources to attribute problems to a changing climate (Sabin Center for Climate Change Law, n.d.). The implication is that attributing a disaster to climate change will allow us to attribute the damage from disaster to fossil

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fuel companies. And attributing damage to fossil fuel companies will lead, in turn, to a halt to climate emissions, thus repairing the damage that was already caused. The causation that courts seek requires tying harm far more closely to a specific wrong act than what public health writers meant when arguing that climate change increases the chances of a pandemic. But the scientists who leverage computing power to attribute damage from disasters to climate change argue that asking whether climate change caused a particular disaster is asking the wrong question. Calculating the increasing risks of disasters—fires, floods, pandemics—is a probability game. When, where, and whether any one disaster will strike remains uncertain. The disasters do keep coming, though; the annual rate of billion-­dollar disasters has been increasing in the United States (Smith, 2020). What are we left with? Courts are too often a self-­contained specialty in climate governance (Peel and Osofsky, 2015), leaving other commentators and advocates with little to imagine except a holy grail case, one exempt from ordinary organizational politics. The actions of neglecting courts as governing institutions while aspiring for heroics from the same courts complement each other. Neglecting courts leads to treating them as extraordinary and episodic. Invoking a holy grail case imagines that a decision will be instrumentally effective and solve all problems without the mess of many actors required to clean up, outside ordinary politics. Failing to integrate the courts into their cultural and political environment ensures that the complexity of making decisions meaningful disappears. Put another way, the many steps that would go into implementing a major climate ruling are buried in Higgins’s claim that people would “have to” follow a court decision about climate change. No one would say everyone would “have to” follow a law about speed limits on streets. Instead, enforcement mechanisms and priorities, and strategies for resistance, matter. Findings about resistance to court decisions replicate across virtually every field (Huq and Ginsburg, 2018). Judges interpret rules written by someone else. If the insurance industry wrote policies that excluded business interruption coverage due to a virus, people could contest those interpretations in court, and some courts could hold that businesses must be covered. Nevertheless, the rules themselves limit the courts’ heroism. There is only so much that the courts can require us, on the ground, to do. Similarly, there were no legal rights with which courts could interpret cases concerning care work during the pandemic—not without Congress establishing national legal rights in a statute. Complaints would have to be framed according to existing legislation. Once Congress had enacted the



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Families First Corona Relief Act, employees could challenge how employers accommodated requests for remote work, and challenges concerning remote work were the dominant challenges that employment lawyers could find (Fisher Phillips, n.d.). Whatever the outcome, a few complaints about remote work accommodations only indicate how complaints at the margins could not possibly meet the vast need for care. In truth, those who are most experienced in the legal system recognize that the hope for a victorious instrumentally effective case that will bring about the world it imagines—one where the advocates’ model of the law is fully complied with—leads to disappointment. Generations of scholarship on high-­stakes litigation has demonstrated the limits of narrowly defined instrumental effectiveness: organizations find multiple ways to redefine what a court case means, and they slow its realization (Rosenberg, 2008). Most notably, in the United States, schools are still segregated after years of desegregation litigation, leading the antiracism scholar and litigator Derrick Bell to argue that recognizing the permanence of racism is both realistic and freeing, for no one can accomplish everything but everyone can contribute (Bell, 1992). Findings about what it takes to bring a case to court and how both the opportunities and the resources limit the instrumental effectiveness of court cases with big aspirations have turned out to be robust across many fields, and will be summarized later in the chapter. The point of synthesizing findings is to set up a different way of defining how to understand courts in environmental governance. Defining what is included by the cases filed, across multiple fields, does not center on intent or instrumental effectiveness. Nor does it center on one case, or even one kind of case. Including a broader range of cases that a problem generates opens up alternative understandings of what the problem is, multiple meanings, and multiple potential effects. Depending on the field, actions in court can activate identities, identify losses, affirm problem definitions, or satisfy electoral promises.

Legal Opportunities and Limits to Litigating Limits begin with the point that courts interpret law that precedes the complaint they are hearing. Without positive legal rights to interpret, the courts have a limited role in developing principled statements for governing (Rosenberg, 2008; Vanhala, 2013). The legal claims that courts recognize build on

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what other courts have done before. Conventions of interpretation would not lead to the belief that the courts are going to find a right to child care in the United States, even though failures of care in the pandemic spilled into every part of life. Legal categories organize responsibility that judges can recognize: a levee board might not have brought on extreme rainfall, but it is responsible for maintaining the levee that failed during the weather event, for example. A public utility that operates electrical lines did not directly cause the increasingly hot winds that make fires more likely in a changing climate, but its employees do have to ensure that the lines do not tangle with trees and grasses (Sterett and Mateczun, 2022). During the pandemic, nursing homes may not have caused COVID-­19 in any sense that laws recognize, but it would be easy to assume that legal standards would establish that they have to manage outbreaks safely. The failures that ensue in natural disasters include potential claims, including the financial and legal organization that allows levee boards, utilities, or nursing homes to prioritize making money for shareholders or the boards themselves over maintenance (Barry, 2004; Horowitz, 2020). These are governance decisions in institutions run for the benefit of investors, which have the effect of shorting their preparation for extreme events. Levee failures and utility failures are all subject to claims for damages from people who lost their home. After the devastating wildfires in California in 2015, 2017, and 2018, Pacific Gas and Electric (PG&E) found itself in court over charges that it had inadequately maintained utility lines and had not trimmed trees and grasses to mitigate fire risk. The substantial value of the claims led the utility to file for bankruptcy. The state legislature then enacted a process and an amount to resolve the claims. PG&E settled thousands of claims for $13.5 billion. However, the settlement fund was contingent on the utility’s finances, and by 2020 it had declined by $1 billion in value (Sterett and Mateczun, 2022). Court cases can bring in other institutions, including legislatures. State legislatures have also responded to the multiple insurance claims filed after the pandemic, as discussed in the next chapter. These losses, including the financialization of risk, are also part of disaster cascades. Amir AghaKhouchak and his colleagues, the engineer who argued in Science that scientists needed to study interactions in physical hazards, noted levee failures. A commonsense response for many people is that courts could remedy the problem by holding an organization responsible when levees fail, followed by the belief that settling for a large figure will lead utilities to change how they act. But courts first must be integrated into



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the complex interactions that disaster cascades comprise, and what changes afterward remains hotly contested. Anyone aspiring to take a claim to court needs a litigator.2 Litigators can be interest organizations, for-­profit attorneys, or public defenders. In the pandemic, public defense attorneys took cases to get people out of prison, arguing they were at risk of contracting and spreading COVID-­19 there. Cases without public assistance or an attentive interest organization, or that are lacking the chance of a major payout that might catch the attention of for-­ profit attorneys, are less likely to go to court. Claims require accessible courts, with rules that allow cases and some willingness to enforce laws. Legislatures have restricted access to courts in liability litigation and in immigration and asylum seeking. Moreover, cases can require allies to implement decisions. For example, court decisions regulating emissions gave Environmental Protection Agency (EPA) officials leverage to regulate for climate change (Fisher, 2013). When administrations change, so does the EPA’s work. When there is a claim for damages, enough money has to be at stake for it to be worth someone’s while to take a case. That is one reason people could bring court cases against cruise lines for their actions at the beginning of the pandemic, or cases against universities for tuition refunds. Between legal protections, including how difficult it would be to prove someone caught the virus at work, and the reluctance of undocumented people to pursue their legal rights, it was never likely that the landscape workers in southern Florida would be able to take cases if they got sick and brought COVID-­19 home to family members, even absent new state legislation. Cruise lines were a much better target. When cases are brought by interest organizations, a complaint needs to fit the organization’s mission. But if the interests of those with resources converge with the interests of people with fewer resources, then bringing cases can sometimes serve both groups. State attorneys general brought lawsuits against pharmaceutical companies concerning their drug pricing; in doing so, they could save both the states and the patients money (Nolette, 2015). States also brought lawsuits against pharmaceutical manufacturers for continuing to market addictive opioids long after the manufacturers knew there was a problem, leading to settlements that could potentially help people with substance use disorders (Haffajee and Mello, 2017). Similarly, the lawsuits against oil companies about greenhouse gas emissions could identify a “governance gap,” filling in where national governments have failed to act on climate change (Marshall

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and Sterett, 2019; Vanhala, 2013, 2020; Vanhala and Hilson, 2013). Holding oil companies responsible for damage from greenhouse gas emissions could also serve the interests of the communities suffering from environmental damage. Still, on the whole, relying on the press of private lawsuits to change policies continues to bias systems. Without dedicated resources, claiming legal rights is difficult for people who only want to win their suit for their individual gain. Despite aspirations and hard work by lawyers for the disadvantaged over many years, the haves tend to come out ahead of the have-­nots (Galanter, 1974). Despite these discouraging conclusions, though, people take away different lessons from histories of litigation. Climate activists do search out big, inspiring cases that do indeed bring energy to movements even if they do not accomplish everything. No one governing action ever accomplishes everything, and there is no reason to expect more of the courts than of other institutions. Brown v. Board of Education (1954) is taught to schoolchildren as an iconic case in the United States. It also has inspired litigators in other fields. Conservative groups did conclude that school desegregation litigation brought change to the United States and that they could do something similar to bring the changes they aspired to. More, though, they also concluded that filing many cases and losing many was an acceptable way to pursue change (Southworth, 2008). An incremental strategy rather than relying on one case with a victory from an appellate court could contribute to change. This incremental approach has been a hallmark of the conservative legal movement in the United States. A more expansive view of courts’ significance counts multiple effects of litigating as “constitutive,” or contributing to defining a problem, raising awareness, and mobilizing movements. The process of bringing people together and pursuing cases can be inspirational and contribute to building a movement organized around rights claims; the instrumental outcomes are not the only desired results (Setzer, Silbert, and Vanhala, 2022). Constitutional claims are more likely than disputes about insurance to draw on quotable, inspiring language about principles, including equality, freedom of speech, or religion. More accessible language can appeal to the identities that have either divided or united people. The popular image of court decisions as instrumentally effective colors even their inspiring or problem-­defining effects. Climate stories about courts in the news and in popular culture, for example in Robinson’s Ministry for the Future, or on the website about a broad climate change case in the United States, Juliana v. United States (2020; Our



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Children’s Trust, n.d.) offer hope by promising an instrumentally effective case. Announcing that change is more complicated than had been assumed does not stop the cases from being meaningful. Chapter 4 discusses this point in greater detail in tracking lawsuits about trying to free people from incarceration during the pandemic in California. Aspiring to meaning, inspiration, or political advantage may better capture the big principled claims in the pandemic. Few would suggest a case would be instrumentally effective in solving the problem of the pandemic, not least because no one could define it as a single problem. As Kim Bouwer argues, the holy grail can be mysterious and difficult to find, with uncertain implications. What people are searching for is often contested, or at best unclear, and would be difficult to recognize if someone did find it (Bouwer, 2020). In the pandemic, the case most akin to a holy grail but least likely for a winning outcome would be a case against China for the virus. What would be the instrumental point of holding China accountable in a court case, if one could? Would it be to gain money to pay for hospital care? That’s most unlikely. Or would it be to advance the career of a politician bringing the case? Even without a final decision, certain dramatic cases tell a story about wrongdoing that can resonate with publics. A case against China, however unlikely to succeed, aspires to deflect blame from national political officials to China for mismanaging the pandemic. In a related manner, cases about restrictions on in-­person worship during a pandemic can appeal to voting constituencies, who blame state governments for discriminating against religion, even if declining numbers of people nowadays actually show up to sing in church. And lawsuits against oil companies seeking remedies for greenhouse gas emissions could contribute to changing our commonsense understanding of climate change and responsibility, even as these cases also drag on, moving between state and federal courts in the United States and through complex legal processes elsewhere. In the unlikely event a court would decide a case holding China responsible for the release of the virus, that case could not govern the multiple and more remote effects of the pandemic that are influenced by policies in other countries. A holy grail outcome could not do anything about the lack of care for children, for example, or the need to show up to work despite school closures, or the difficulties in managing fires or freezes and utility failures in a pandemic. Even bringing a case without a clear declaration would lay blame in a way that was useful in political argument: a case spills over into partisan politics, beyond instrumental effectiveness.

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Turning to cases as constitutive, set in a broad social context, organizing awareness of rights and wrongs, and inspiring people for change has most often focused on a case or group of cases in a clearly defined field. Constitutive approaches to litigation about greenhouse gas emissions ask what they mean to people and how people organize around them (Setzer, Silbert, and Vanhala, 2022). Even this broader contextual understanding of what lawsuits can mean, though, is organized around cases that interest organizations do define as meaningful. Searching out one instrumentally effective case solving a big problem has little to do with litigating the pandemic, even though the pandemic is climate-­related. Reports and analyses that place the pandemic at the feet of climate change are not organized to prove this link for either scientific analysis or for the courts. Blaming damage on a responsible agent, which would then have to pay for the damage it caused, is not the point of the lists of pandemic causes—land use, global travel—in public health reports (such as the authoritative Global Health Security Index [2019]) and popular analyses of the pandemic, outlined in the previous chapter. Within this context, they can paint with broader brushstrokes, gesturing to interactions between wildfires, heat waves, urbanization, and lost habitat. Despite widespread convergence among public health experts around the connection between climate change and the pandemic, defining causal agents of the pandemic as the causal agents in climate change cases is unlikely. Yet the pandemic generated multiple types of lawsuits. The reach is much broader than finding a causal agent, and understanding the spillovers of climate-­related pandemics in courts requires gathering cases together in a different way. Broadening the view to multiplicity in cases in the pandemic leads to multiple problems, no one of which anyone would claim is the only pandemic problem. Business failures after closures, unsafe congregate care and incarceration, mistrust of experts, and divisions over democracy and religion could never be amenable to a solution from one case. These issues would not even mobilize the same people. Insurance, the least inspirational of claims in this list and the most reliant on technical language, has promised to appropriately price and respond to risk to govern climate change. That insurance companies could largely successfully deflect liability in a pandemic should raise alarms about reinsurance companies’ claims to be able to price climate risk correctly (Collier, Elliott, and Lehtonen, 2021). Public programs designed as emergency relief rather than based in risk calculation did pay out, with limited accountability. Private insurance and reinsurance companies’ capacity to manage risk in a changing climate is key



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to climate governance, which is often treated separately from the way insurance intertwines with public governance. The climate change and insurance scholars Stephen Collier, Rebecca Elliott, and Turo-­Kimmo Lehtonen have argued that the public and the private always mutually organize each other (Collier, Elliott, and Lehtonen, 2021: 165). One way is taking on need that the insurance industry’s promises based in risk and calculability fail to meet. Mixtures of public spending and private insurance will continue to be key in managing climate-­related disasters, and court cases can identify gaps and failures in responsibility.

Settlements: Court Cases without a Final Decision Asking whether court cases are effective in bringing about the instrumental change requested by a given plaintiff implicitly focuses on the decisions judges make, especially in final courts of appeal. Scholars who include the more diffuse, indirect, constitutive effects of litigation have been more likely to include cases that settle, that reach an agreement without a final decision about responsibility from a judge, or even cases that are dismissed. Prioritizing final decisions seems an obvious choice: when else could courts matter? However, most cases settle: the parties agree to an outcome after a case has been filed but before a judge issues a final decision. Many cases are dropped or dismissed. In these instances, the courts still matter, though. Someone went to the trouble of filing a lawsuit, and wanted something from it. Interest organizations claim credit for filing actions, not just for victories. They have good reason to, besides demonstrating to their constituencies they are working. Actors can respond to a lawsuit’s filing, or someone who filed it can hope they will. The back-­and-­forth among people as cases make their way through courts does not lead to clear conclusions about what the law means or significance of final decisions from a court of appeals. Commentators sometimes even blur a judicial decision and a settlement, treating them as the same. For those who don’t study courts and the costs of going to court, brief references to the success of court actions appeal to common sense about what a win or a loss means: cases are instrumentally effective. In his 1984 book Normal Accidents, theorizing complexity, disaster and accountability, Charles Perrow briefly mentions the 1972 dam failure in Buffalo Creek, West Virginia, for example. He notes the settlement of the lawsuit against the coal company responsible for keeping the dam functional

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(Perrow, 1984: 233–234). Settlements, like decisions from final courts of appeal, can have ambiguous meanings. The deterrent effect of the lawsuit in Buffalo Creek is unclear; other coal-­mining disasters followed. Settlements after disasters that look very large in the aggregate can be miniscule for those being compensated (Cassels, 1993; Fortun, 2004). Some of the very prominent lawsuits concerning corporate and government misdeeds have resulted in settlements (Coutin, 2000; Nolette, 2015). Notable settlements in the United States include those states that gained from the tobacco industry (Mather, 1998), opioid manufacturers (Haffajee and Mello, 2017), and pharmaceutical companies for their pricing practices (Nolette, 2015). The pressure of multiple cases from trial courts and the concerted efforts by state attorneys general influenced these outcomes. A settlement can contribute to reshaping public understanding through evidence introduced in court, which attorneys can then amplify. Attorneys general fighting against drug companies’ pricing policies, for instance, got nowhere with the legislatures; their complaints about pricing policies as fraudulent ran up against assertions that the markets were efficient. By bringing complaints under existing law with evidence, the attorneys involved in this battle helped redefine these pricing practices as illegal (Nolette, 2015). Settlements are legal resolutions, but they complicate the image of judicial decisions as declaring right and wrong. Courts can dismiss cases for not stating a legal wrong, for having been brought in the wrong court, or as being made against the wrong person or agency. Government agencies are often immune from lawsuits. After Hurricane Katrina, lawsuits against the Army Corps of Engineers (ACE) for how it built and maintained levees were dismissed because the ACE was immune. A lawsuit against the levee boards for failing to maintain the levees was settled, with payouts promised many years after Katrina (Sterett and Mateczun, 2022). From a lawyer’s point of view, cases that are dismissed or that settle do not change the jurisprudence, or legal principles, which are often the central point when teaching the law. Settled and even dismissed cases can be meaningful, however—just not in the instrumental way that is often imagined as the most important meaning for a case. If most cases settle or are dismissed and those cases still have meaning or compensate people for losses, then it behooves us to follow all cases that are filed, rather than only cases the U.S. Supreme Court decides, if we want to better understand courts in governance. Cases that are filed are not all holy



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grail cases. They do not promise to solve multiple problems at the stroke of a judge’s pen—a stroke that might never come. The single case will always disappoint or may not even be possible, and settlements and dismissed cases are part of governing too. The concept of cascades offers a way of including the weight of numbers of cases in assessing the process of governing with courts. In what follows, I describe cases as a part of disaster cascades. Mechanisms for change that have reappeared in litigating for climate change include the hope that wide-­reaching decisions from a final court of appeals will reshape governing. An alternative is the idea that the sheer weight of multiple cases could change practices.

Cascades in Court: Principles, Numbers, and Limits The concept of cascade through tightly coupled systems has only rarely been used in analyzing courts and the complaints that legal categories organize. International relations scholar Kathryn Sikkink has argued that decisions from courts about right and wrong could lead to a “justice cascade” when countries are moving through transitional justice processes from repressive regimes to democratic. In a justice cascade, cases lead to other cases and can even lead to greater commitments to justice. Positive spillovers include changing practices even when a court has not directly ordered that people do so. One court case can influence what comes next in court, whether by opening pathways for lawsuits or by discouraging people from bringing them in the first place. Sikkink studies human rights claims against torture in Latin America, which is a far reach from claims about insurance, mask mandates, mass incarceration, or closures of places of worship (Sikkink, 2011). However, the spillover idea is useful anywhere. In climate litigation, scholars have named spillovers “indirect effects” (Peel and Osofsky, 2013). In the pandemic, litigants and others argued that cases challenging orders to close places of worship for the protection of public health were cases about fundamental human rights embedded in the Constitution: the free exercise of religion. States wrote guidelines that tried to take into account legal principles. Court cases decided by final courts of appeal are supposed to articulate shared public values, a role shared with what Sikkink argues is a function of court cases in transitional justice (Sikkink, 2011). One person’s justice cascade, though, can be another person’s injustice cascade. In the United States, the claim to instituting new political norms,

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when pressed in high-­profile cases that final courts of appeals decide, include the enforcement of moral views aligned with the preferences of religious conservatives. The “justice cascade” model in the United States during the pandemic includes litigation to enforce a preference for legal protection for the exercise of religion over public health measures in uncertainty, which is explored in Chapter 5. These too can spill over, or have indirect effects. Court cases also cascade across fields. Cascades crossing fields that are often treated as separate are not central to Sikkink’s analyses of justice cascades in human rights violations. Yet multiple legal fields connect to cascading disasters. A contagious virus reveals risks inherent in land use and habitat loss, business and insurance practices, global travel, and mass incarceration. The legal cases that follow are about the risks of failing well before the pandemic to take collective responsibility for each other (Brown, 2019), and treating business operations, attending college, being incarcerated, or having children as individual problems requiring ad hoc solutions in an emergency, rather than markers of systems that had long been fragile. Sikkink describes two routes for justice cascades. First, she names “norm diffusion,” a process by which ideas about what is right and wrong change (2011). She argues that people learn the right thing to do through the drama of widely reported trials of officials who have committed human rights violations, and through court judgments. If judicial statements of norms come from anywhere in disasters in the United States, including the pandemic, they are likely to come from the U.S. Constitution, with the Bill of Rights and amendments protecting sometimes familiar principles—including freedom of speech, assembly, and the exercise of religion; a prohibition against establishing religion; and equal protection. Over the years, the Court has decided cases concerning deep divisions in American life, and these cases have become iconic. Spillovers and indirect effects do not always resolve divisions, however. The notorious decision in Dred Scott in 1857 did not resolve deep divisions about slavery, though the Court had thought it had taken on that task (Huebner, 2020). Decisions in the pandemic from the Supreme Court also evoke cultural divisions about religion and public health, and about elections. Elections and related restrictions are at the core of the democratic backsliding Jacob Grumbach (2022) identifies, as discussed in the previous chapter. In disasters, the trials with dramatic testimony, trials that Sikkink argues form the heart of educating people about right and wrong, are not routine.3 People making claims on utilities make them in arbitration hearings. Arbitration is often not public. People fortunate



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enough to receive settlements from insurance companies get them through administrative processes and filings. Beyond holy grail cases, or even settled cases, Sikkink argues that courts can bring change from the sheer number of cases filed (Sikkink, 2011). When numerous cases on a given problem are filed, the press of those numbers can change how a wrong is described, and whether an individual or a collective harm. Large numbers of cases demonstrate the pervasiveness of a problem. In cold-­blooded terms, they may increase the costs of what those accused of wrongdoing do, whether they believe what they are doing is wrong or not. Filing cases identifies problems from the ground up; naming rests at least as much on the court filing or on a settlement as on a decision a judge makes. This mechanism can apply well beyond the human rights violations Sikkink (2011) analyzes. In the pandemic, people filed thousands of cases against their insurance companies for not paying for business closures. In turn, insurance companies argued that the only answer was a federal program to underwrite insurance; the losses were too great for private companies to underwrite. Bringing large numbers of cases could change political alliances in other fields. In the pandemic, for example, insurance companies would not pay business interruption claims when businesses closed to contain the pandemic. A person who has to close their business but cannot persuade insurance to pay has a problem. The insurance companies’ refusal to pay thousands of such claims during a pandemic creates a public problem, and large numbers of claims could contribute to framing a problem as shared. A second example is that in the absence of shared responsibility for well-­being, including for the detained, an individual at risk of contracting COVID-­19 in prison has a personal problem. The risk of COVID-­19 spreading through prison and in the broader community is a public health problem. The threat to thousands from wildfires during a pandemic is also a public health problem. And when states need incarcerated people to fight fires, widespread illness among the incarcerated becomes a disaster management problem. These are all links in the disaster chain. Tracking cases filed early in the pandemic leads well outside the public health field as it defines itself and as commentators typically understand it. Litigation captures spillovers from businesses that are fragile in the face of increasingly likely pandemics that they cannot insure against, as well as those from mass incarceration. In facing these challenges, mobilized businesses and interest organizations have touched on voting, firefighting, property

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ownership and its inequities, and mass incarceration and its costs in an attempt to resolve their troubles. Limiting our assessment of cases to those decided by the nation’s highest court would not capture these many cases across fields that were dismissed or settled. Many raised problems in the states, and not all aligned with the national partisan political agenda as clearly as liability limits did, though they did reflect national problems. Which courts we turn to in an analysis, then, changes the actors being followed, which in turn allows a problem to be redefined. My point here is not to delimit conditions where there could or could not be disaster cascades in court. Rather, in a complex system, institutions can amplify disasters, so they are not contained to a virus but include financial safety nets, incarceration, and principles about religion. Where courts are available and institutions have not addressed problems to everyone’s satisfaction, problems will show up in court. Successfully addressing these problems to everyone’s satisfaction is unlikely, not least because people can—and sometimes do—use the courts for no other reason than to advance a contentious political agenda, even (or especially) when real lives, and real stories behind those lives, are at stake.

Conclusion: Governing with Courts beyond Heroic Cases Seeking a holy grail case or cases centered on mitigation rather than harm now distracts us from all the litigation currently connected to climate change. Effects include the pandemic and the multiple kinds of litigation it brings, not just one causal claim attributing a pandemic to China or the harm brought by a government closure order, but also insurance cases and cases trying to get people released from prison. A holy grail case in climate change focuses on blaming those who fostered fossil fuel use. It would never reach the more remote effects, including a pandemic, even if authoritative health reports link a pandemic to climate change, which is in turn linked to greenhouse gas emissions. Whether challengers win or lose, that these problems are in court at all signals divisions. Courts can issue decisions that different sides may find useful in debate, whatever the precise outcome. Turning from a holy grail and its hoped-­for instrumental effectiveness, or even the constitutive effects in a particular field, as the primary ways of understanding how courts govern leads to asking what the courts actually do. Starting from the ground up, rather than from a causal agent down, we



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can begin finding widespread effects and intermediate causal agents. Anticipating problems and interactions in complex systems is difficult, as Charles Perrow has argued (1984). Designing complex systems to address problems soon engages people’s limited ability to plan (Ostrom, 2005: 270, citing Herbert Simon). Following filed court cases frees us from having to rely on one person, or a group of people working from one point of view, to define a problem. Stopping the damage from a rapidly spreading virus requires more than blaming an initial causal agent. Improving a changing climate, in turn, requires more than limiting the use of greenhouse gases—though climate governance has historically focused on “gases not people” (Simonelli, 2015: 127). This approach is overdue for a change. As the effects of climate change become increasingly visible, litigants help identify these effects by taking specific complaints to court. I would argue that the search for one case to solve all problems also misses the complex interactions in disaster cascades. Naming what the compensation would be for everyone would require accurately assessing the damages that the law recognizes. But damages only recognize positive rights, or rights that legislatures or executives have already enacted or courts or executives have already recognized (Rosenberg, 2008). Court orders compensate people for what they have lost. The United States had no positive rights to paid sick leave to accommodate children during school closures until Congress enacted the Families First Coronavirus Relief Act (FFCRA), potentially generating lawsuits claiming that employers did not follow the law.4 An advantage of drawing from court cases that are filed is that such an approach does not require mapping out the damages ahead of time or anticipating every problem. Instead, it relies on how interest organizations and individuals experience problems that they can define as legal wrongs. Long before anyone holds some original causal agent responsible for the pandemic or for a changing climate, state governments determine what to do about uninsured losses, fight climate-­related fires in a pandemic, and house people who need to flee floods or fires. Litigating the pandemic in a changing climate amid contentious politics implicates much more than what a single holy grail case, or even multiple cases about greenhouse gas emissions, can identify. Given the limits to what grand principled cases can accomplish and the far reach of problems in a changing climate, we would do well to turn to a wider variety of cases, whether settled, dismissed, or decided, to better capture the place of courts. From this vantage point, governing during the pandemic

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now includes litigating about others whom people aspire to hold responsible for the effects of a pandemic amid climate change—including insurance companies, agencies that manage levees, and utilities that fail in a deep freeze. Public health writers agree that land use and travel contributed to the rapid spread of COVID-­19, but they are not writing for the purposes of allocating responsibility as courts would. The companies who operated cruise ships or nursing homes were closer to the problems of illness spreading in congregate living than those fostering the use of fossil fuels were. Crafting a legal claim here brings in many actors well beyond the usual suspects. Maybe fossil fuel use was a first cause of the pandemic, but debating that question would be like debating the number of angels on the head of a pin. It doesn’t get us very far. Legal doctrine and the people who sue find much more proximate causes and many of them, as well as widespread damage. Where climate change is concerned, there is no one instrumentally effective solution from a court to myriad problems, even with substantial governance gaps. In sum, court decisions can influence the world they act within through instrumental effectiveness or bringing change in the fields they judge. They can also make a difference because litigants and courts craft problems to tell stories of cause and effect, using facts that the law makes relevant. Litigation identifies and names problems and shapes public knowledge through the way cases are reported and how intermediaries explain them. The weight of cases can also increase the cost of a problem for an actor, even if no court renders a final judgment. Litigation also earn fees for the attorneys who take cases and can matter to them even absent outcomes that change future practices. The instrumental effectiveness of a heroic court decision portrayed as a holy grail is, in reality, the least likely outcome of a court case. The limits that courts experience could lead to the conclusion that excluding them when describing the complex systems failures in pandemics and disasters, as most of the scholarly discussions currently do, is the right approach. But cases both filed and decided play out in governance contexts well beyond the individual situation, and well beyond how a judge does or does not decide something. Even with their limits, courts matter. Cases signal a problem for insurance systems, for incarceration, and for whatever other institutions are at stake. These cases increase the costs of decisions implicating climate change and the costs of risk taking within a pandemic. Turning to the multiple lawsuits responding to disaster cascades will allow us to capture greater complexity than if we searched for a single case that will solve multiple problems by articulating a new right. What’s more, the



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relevant cases are about more than just the pandemic. They reach forward and backward in time, contributing to a longer struggle over lawsuits and their meaning in governing in the United States. They bring in conservative lobbying about injury litigation, failures in insurance, and political divisions about religion and public health. Governing a climate-­related pandemic amid other disasters and democratic backsliding implicates so much more than missteps by national health leadership. If anything, the pandemic, including or especially the pandemic in court, has clarified that people in the United States do not share the same ideas about the primacy of public health in a health emergency, and that institutions can be brought along to agree with them.

CHAPTER 4

Tsunamis, Explosions, and Misdirecting Metaphors

I

n March 2020, the United States became quieter, outside of hospitals and shipping warehouses. The virus had spread throughout Wuhan, China, and the cruise ships Diamond Princess and Grand Princess had already been placed under quarantine. People love to gather at sporting events, and conditions at indoor sporting events were ripe for spreading the virus. After one player tested positive at the NBA basketball game on March 11, the game was canceled and the arena emptied (Cacciola and Deb, 2020). That marked the beginning of widespread closures in the United States. On March 11, the WHO declared a global pandemic. In many states, this announcement meant no more in-­person sporting events, in-­person concerts, or theater performances. People who had planned to go on cruises, attend concerts, or travel, requested refunds when businesses closed. Some went to court to complain about refunds they had not received. Consumers lost money with tickets they could not use and plans they had to cancel. The businesses that had to close also lost revenue and turned to the federal government and to their own insurance companies for help. The Congress turned to relief, and Republican senators turned to worrying about businesses’ liability for COVID-­19. These senators were not responding to actual cases filed, but to a threat there might be many such cases. Worries about potential liability and excessive litigation were nothing new: such fears had long resonated culturally, not least because advocacy groups and businesses had pressed this point (Haltom and McCann, 2004). The pandemic was one more opportunity to warn of litigious Americans. In the previous chapter, I followed leading political analysts in noting that limiting voting is one way for a party to stay in power when policies are unpopular. Another strategy is to bring up other issues, including resentment



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around identity, a tactic that has become an easier sell of late in the United States as social identities invoking religion, geography, and race have all become tied to party affiliation (Mason, 2018; Hacker and Pierson, 2021). In advocating for policies that a minoritarian party can claim common sense supports, and that align with its priorities, is an opportunity. The Republican Party has long held that a substantial cause of high insurance costs and medical care in the United States is the liability for injuries that companies and health care providers shoulder. Campaigns to limit the ability to recover for injuries, including in medical malpractice, have drawn on the belief that we live in a litigious culture where people complain about the slightest possible problem—and what’s needed is for these people to care for themselves and pay the full cost of the injuries they suffer. This long, continued effort was more than a technical legal argument about rules. Instead, the public framing reinforced what the Republican Party framed as the morality of individual responsibility, and what others argued was an exemption for businesses when there were no publicly supported ways of caring for injured people (Haltom and McCann, 2004). Beginning in spring 2020, law firms and the conservative think tank the Heritage Foundation supported legislation limiting liability for anyone who might be sued because someone fell ill while simultaneously acknowledging that few such cases against employers had been filed. When asked, they argued that even the threat of lawsuits was enough to justify legislation (Gibson Dunn, 2020; Heritage Foundation, 2020). More detailed discussions of the law explained that for many employees, workers’ compensation paid people who became sick at work. Although the publicly debated lawsuit problem concerned the risk of liability for illness, the lawsuits filed at the beginning of the pandemic challenged insurance companies’ refusal to pay for “business interruption.” Insurance contracts and state rules about interpreting insurance contracts governed. The insurance industry had worked on writing policies and litigating claims for years. Businesses could be exempt from responsibility without the colorful comments from public officials that characterized the liability debate. Limiting employers’ liability lawsuits during disaster enjoyed the backing of the American Legislative Exchange Council (ALEC), the group that coordinates proposals for conservative state legislation, including legislation restricting voting (Hertel-­Fernandez, 2019). By summer 2020, ALEC had made model legislation limiting liability for open businesses available on its

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website (ALEC, n.d.), a tactic it often takes to encourage states to legislate. ALEC also announced the passage of Florida’s statute limiting liability on its website (Jarrett, 2021). One of ALEC’s signal successes had involved state legislation limiting liability and awards in injury cases dating from the 1990s, in response to increasing insurance costs (Hertel-­Fernandez, 2019: 34–35); the new pandemic legislation was of a piece with these earlier priorities. Although COVID-­19 was the occasion for the legislation, the new limits applied more broadly to injuries in a disaster. Members had also succeeded in influencing states’ laws limiting protection for immigrants (Collingwood, El-­Khatib, and O’Brien, 2019), and ALEC has also led in proposing model legislation for states to use to restrict voting (Hertel-­Fernandez, 2019). The pandemic’s early months thus saw an already well-­organized interest organization acting on a long-­standing commitment to making it more difficult for people to recover compensation for injuries. The effort proved successful in many states. According to the National Conference of State Legislatures, by February 2021, twenty-­one states, Puerto Rico, and the District of Columbia had all enacted bills to address liability for illness at work during disaster (Morton, 2021b). Notably, those workers who were at the greatest risk of getting sick and spreading the illness to others—undocumented people working in essential businesses and living in multigenerational households— were also the least likely to make claims. This point never entered the political conversation. Data from the law firm Fisher Phillips, which had tabulated the employment cases filed in court, shows that of the 2,815 employment cases they had found from the pandemic’s beginnings to July 2021, there were just nine unsafe working conditions cases from Florida (Fisher Phillips, 2021). During a world-­historic pandemic, Florida had thus legislated against a legal threat that had been unlikely from the outset, and still had not appeared a full year into the crisis, when Governor DeSantis signed the state legislation. ALEC claimed victory, appealing to Republican national officials and to businesses that warned of the threats to the economy. As I show in this chapter, responding to such threats was just one way lawsuits became part of politics in the pandemic, from state legislation to state courts to the U.S. Supreme Court. In doing so, the governor and state legislators strongly signaled the priority of national Republican Party programs, which have long included limiting personal injury litigation. Proponents of relying on liability restrictions only had to turn to ALEC’s model legislation, and then could take one more step in the pursuit of enforcing markets over regulation (Brown, 2019) to ensure the economy continued to



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work without risks of owing for illness. Other groups, which we will turn to in the next chapter, pursued the protection of religion in court, in a separate but not unrelated movement. Attending to language choices is important here for us to grasp the scope of the warnings issued about liability. Legal commentators warned of the coming “tsunami” in March 2020, just when the pandemic was emerging, and still did so a year later, in spring and summer 2021 (Dyess 2020; Gonnell and McGuigan, 2021; Maatman and Riley, 2020; Wittenberg, 2021). By summer 2020, still at the height of the pandemic, Fisher Phillips, an employment law firm, was collecting case filings about employment and releasing information about how they coded the cases. In a news release, Fisher Phillips stated that June 2020 had seen an “explosion” of cases against employers. The firm referenced “exponential” growth in lawsuit filings (Fisher Phillips, 2020). Exponential growth, if taken to mean what it does mathematically, means that where there were ten cases over the first time period, there would be one hundred over the next period, and one thousand over the following one. According to the data it reported, the firm overstated the risk of lawsuits in its news release. Most of the cases Fisher Phillips had found concerned how well employers were meeting their obligations under the new federal legislation, not litigation against employers for liability for illness. Moreover, the term “tsunami” is impossible to define when it comes to lawsuits. It sounds big, though. Perhaps it is pedantic to criticize law firms or lawyers for misusing the word “exponential” and for stretching the meaning of “explosion” or “tsunami.” Stating the risks of lawsuits so dramatically, however, aligned neatly with the perspective of attorneys managing litigation and legal risk for employers. With law firms warning of a “flood,” a “tsunami,” or an “explosion” of litigation early on, Congress considered limiting liability as early as March 2020 and throughout the rest of the spring and summer, implying that the flood of cases would concern liability for illness at work or liability for health care workers. This argument drew from ideas in circulation about Americans and lawsuits, and from incendiary words like “tsunami” and “explosion,” not from actual cases filed. The claim that Congress needed to legislate because people would sue their employers, making it impossible to reopen businesses, failed in Congress but succeeded in many states. Yet the rising numbers of cases that did appear were about insurance and refunds and civil rights, not about liability at work. In summer 2021, Illinois Senator Dick Durbin (D) noted on the Senate floor that the “tsunami” of litigation had never appeared (2021). His

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comment could never resolve the question, at least from the point of view of those who warned of litigation’s threat. Just because a tsunami hadn’t yet shown up didn’t meant it never would. As the pandemic dragged on, a tsunami of cases could always appear. What’s more, comments on the Senate floor that are not covered in the press do not have the same weight as comments that are in the news. This chapter turns to the data on cases filed and how they contrast with cases and litigation threats as represented in Congress and in news reports. In summarizing case filings in the insurance arena, I argue that courts, and images of courts, can and do set political agendas for legislatures. When national political commentary revolves solely around constitutional claims or front-­page headlines surrounding the Supreme Court, it reinforces the belief that the Supreme Court handles most cases, and that the most significant cases are constitutional. But people who received neither federal funds nor insurance payments when they had to close their businesses might disagree. To examine these points in detail, I first describe the New York Times coverage of litigation during the first months of the pandemic. I then summarize what cases were filed in the pandemic and who filed them, relying on databases of cases filed law firm Hunton Andrews Kurth (HAK). Describing categories of cases present in news reports about litigation and COVID-­19, and contrasting these with the reported numbers of different kinds of cases filed in the case trackers, leads to the conclusion that news coverage reinforces the understanding of litigation as a problem for the economy without a grounding in actual litigation. Even the threat of lawsuits against business owners gained greater coverage than the possibility of lawsuits from those actually at greatest risk of contracting the virus—including or especially people detained in prison and people in nursing homes. After I examine the broad categories of cases reported in the news, I turn to the largest categories that the COVID-­19 Complaint Tracker (CCT) found (Hunton Andrews Kurth, 2020). After the CCT began, other firms developed complaint trackers focused on particular fields. I draw on employment complaint trackers and the University of Pennsylvania insurance case tracker (Fisher Phillips, n.d.; COVID Coverage Litigation Tracker, n.d.). To capture reports about lawsuits, I drew on reports from the New York Times, the paper commonly used for studies of national politics, in multiple ways. I drew on news reports of lawsuits between March 11, 2020, when the WHO first declared a global pandemic, and September 10, 2020, six months later.



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The New York Times is legacy media at a time when many people source their news from online platforms, including social media and television (Shearer, 2021). How much does it still indicate the common sense of the news? President Trump, who was in office through the first year of the pandemic, encouraged mistrust in legacy media, including the New York Times, by dismissing these outlets as “fake news.” But most people still get their news from news websites (Shearer, 2021), even if younger adults are more likely to rely on social media. News media and news consumption have become part of the partisan identity that colors the United States in the pandemic. People often consume news they see as aligned with their partisan identity on television or via social media feeds. Gathering news stories from what was once the paper of record could risk missing key coverage, particularly coverage more likely to be trusted by conservative news consumers. However, media platforms share challenges in reporting on issues. For example, the New York Times, like other media, covers the substance of public policy issues less than it covers the national political personalities who discuss issues (Pickard, 2020, 2). Mistrust and partisan news consumption also mean the New York Times is a good case for evaluating news coverage of lawsuits in the pandemic. If the New York Times disproportionately covers the conservative story of threats from litigation over liability, then its reporters are telling a story that runs contrary to what the Democratic senator stated—namely, that liability was not that big a risk. Therefore, drawing conclusions about the news on litigation from the New York Times is more reliable as an indicator of reporting, including both left-­and right-­leaning perspectives, than it might initially seem. As a reminder, how many people would be hurt and how long children would be out of schools or businesses would be closed was not clear to anyone in March 2020. In April, U.S. senators were speaking as though fully opening places for public gatherings could happen at any time, with the only obstacle being the risks of liability. Governors issued stay-­at-­home orders for their states. Both the orders and the responses via lawsuits challenging orders varied by state. The United States soon experienced many deaths and illnesses. Restrictions varied around the world (Baldwin, 2021). New Zealand ordered very restrictive shutdowns on March 25, 2020, but cautiously allowed public gatherings of up to one hundred people on May 13, 2020, after it had had no recent cases. The government continued to closely monitor outbreaks. The initial lockdown was well beyond what the United States as a whole had experienced, but reopening to public gatherings came sooner. The vaccine had not

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yet been developed, but multiple labs were working on it, drawing on years of research about coronaviruses and mRNA. The earliest expectations on the part of the Republican leadership—that the coronavirus would rapidly disappear and the country would return to regular schooling, family visits and vacations, and in-­person work for everyone (Kapucu and Moynihan, 2021)—had proven mistaken by September. The summer 2020 surge of infections had struck, and public health officials were expecting a winter round. Congress had enacted coronavirus relief legislation, which itself generated lawsuits. Early dividing lines around business regulation and religion had been drawn, and by September litigation that would eventually reach the U.S. Supreme Court had begun in the lower courts. Early expectations had allowed Republicans to describe the primary barrier to defeating the pandemic as potential liability for injuries, not testing, masking, or controlling viral spread. I worked with the Times reports in the following manner: First, I followed news reports at the beginning of the pandemic by reading the newspaper and compiling a list of cases discussed in the news. Second, a student research assistant searched for all mentions of “COVID” and “coronavirus” within the same paragraph as “lawsuit” or “liability” on Nexis Uni, the legal reporting database that also allows for news searches of individual sites. Third, I compared the findings from the Nexis Uni search with all the news reports in the New York Times captured via a Google site search. Reading the news oriented me to the themes that reporters discussed. These three tactics did not yield identical results, but the overlap was substantial. The Nexis Uni search yielded the greatest number of reports, so I relied on the results from that search for coding. I eliminated all duplicate news articles, and I also eliminated brief summaries of news articles reported in “Daybook,” or in regional news. By this strategy, I found 240 unique articles reported by the New York Times concerning litigation linked to the pandemic over the six-­month period. These early reports captured disputes and divisions that would continue well beyond the initial six months. Therefore, I followed issues reported early beyond the time period for coding news reports. For example, the site for enacting restrictions on liability for injuries at work shifted from Congress to the states by 2021. Cases filed early on contesting the insurance companies’ refusal to pay for “business interruption” due to the pandemic continued into 2021. Interest organizations brought lawsuits contesting governors’ orders that restricted public gatherings. The Supreme Court decided two cases about restrictions on public worship in the first months of the pandemic. Just



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outside our time frame, the Supreme Court heard a third case. Sometimes the same organizations that brought early challenges to restrictions on public worship brought later challenges to how schools interpreted mask mandates. For particular issues that required follow-­up or greater detail, I examined regional news sources and web-­based news. I coded according to the dominant topic regarding litigation. The dominant topic usually appeared in the title of the news article. Where it did not, I and a research assistant read the news articles to see where and whether they mentioned lawsuits. We gathered quotations from the news articles about lawsuits, or disputes over liability. In the following discussion, then, when I discuss pandemic-­related litigation in the news, I do not claim to be comprehensive, particularly given what an extensive disaster cascade the pandemic has proven to be. Others might include a dispute about an estate because it happened to take place during the pandemic, for example; I opted to exclude such cases. Relevant lawsuits have changed over time, from contests over closures to contests over elections and contests over mask requirements. The players who persist emerged early on and have remained. I conclude this chapter with the argument that the pandemic offered companies an opportunity to suggest legislation that could last past the present moment, since the pandemic is not the last disaster the insurance industry expects to face.

In the News and in Court Early in the pandemic, meatpacking plants became contested sites in the debate over keeping businesses open and protecting people. Workers in these plants operated in close, wet conditions. Many were immigrants, often with little ability to exercise any workplace rights. Wages were low. These workers had been plagued with injuries long before the pandemic. COVID-­19 spread rapidly in the damp, crowded working conditions, and the news reported early outbreaks (Payne, 2020). Meatpacking workers and their injuries remain invisible to most people in the United States, an obscurity—or obfuscation—that enables our ignorance and indifference to the harm inflicted in these places. Long before the pandemic, states had criminalized showing or filming the conditions in meatpacking plants, for fear that reporting conditions for both animals

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and people in the plants could lead to restrictions on their work (Pachirat, 2011). But lawsuits can bring meatpacking plants partially back into view. Even if reporters are not allowed access to the plants or workers, the complaints in these lawsuits can describe the conditions creating dangers that laws could recognize. On April 24, 2020, the litigating group Public Justice filed a lawsuit demanding safe working conditions for workers at a Smithfield meat-­processing plant in Missouri. On April 28, President Trump signed an executive order under the Defense Production Act declaring that meatpacking plants needed to keep operating (U.S. Executive Order 13917, 2020). The news reported on the president’s actions while also reporting the usually publicly invisible injuries to low-­income people in meatpacking plants. The April 24 lawsuit requested protective equipment at work, greater space between workers, breaks to wash hands, and leave time for anyone showing symptoms, among other requests. Meatpacking workers do not belong to unions, so no union could demand their safety. Relying on workplace safety inspections would not lead to these workers’ protection, either; inspections had been limited even before the pandemic (Pachirat, 2011). The Smithfield lawsuit did not request compensation for damages. Protection at work, not money, was at stake. A case for damages would have been hard to pursue; only those who could claim they had become ill could have claimed damages, and they would have had to prove they had become ill at work. Employment lawyers reassured employers that proving exactly where one had contracted COVID-­19 would be difficult to do (Nakase, n.d.). Nevertheless, in the Senate the word “lawsuits” meant liability for illness, and liability meant monetary damages, not safety measures. Senate leader Mitch McConnell announced on behalf of his fellow Republicans that coronavirus relief legislation would include exempting employers from liability. On April 27, Politico quoted Senator McConnell: “‘We can’t afford to not protect all of the brave people who have been at work during all of this,’ he said. ‘It’s going to take a certain amount of courage to open your business up again if you think there’s a lawyer right out on the curb waiting to go after you if he sees somebody within 6 feet of someone else’” (Everett, 2020). Given that the meatpacking plants had been in the news and the next day the president would order those plants to stay open, Senator McConnell’s representation of the threat of liability required some sleight of hand. Those at immediate risk of a lawsuit, as the news reported, were not the local small businesses that McConnell’s word “curb” implied, but massive industrial meatpacking plants. Further, the risk of a lawsuit was not from an eager lawyer waiting to find



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violations of work rules, but from low-­wage people working in meatpacking plants, hospitals, and nursing homes. In May 2020, the Washington Post quoted Republican Senator John Cornyn of Texas, who stated that it was “common sense” that liability for illness would make a difference for “marginal businesses” (Werner and Hamburger, 2020). Senator McConnell also warned of lawsuits against nurses and doctors if people fell ill after getting professional care. Neither senator explicitly cited monetary awards that would put people out of business (instead of orders to take appropriate protections at work), but the reader can infer it. National political officials blaming trial lawyers trivialized risk in a new pandemic with uncertain risks: Senator McConnell described lawyers who would “pounce” simply because someone was standing too close, not because people missed work or were ill or had ill family members. The mandate that businesses must stay open and that business owners were brave to do so does not allow for other ways of protecting business owners and their employees. Framing the problem as keeping businesses going during a pandemic, as Senator McConnell described it, not only eliminated the possibility of public support—a move that perhaps was expected—but it also elided the possibility of support via individually purchased insurance, which was a market-­based way for businesses to protect themselves from risks. National political officials could allow state-­based insurance law interpretations and the contracts the industry had written take care of insurance, freeing themselves to comment on the stylized opposition between businesses and legal responsibility, with small business owners as the victims. The case on behalf of workers at the Smithfield meatpacking plant in Missouri arrived at the beginning of the pandemic, when the Senate was considering relief legislation. Since the illness first spread rapidly through nursing homes, with national political officials as well as the nationally prominent Governor Andrew Cuomo of New York discussing the spread, liability for nursing homes also made the news. So, too, did a lawsuit against the cruise lines, one brought by workers rather than by the guests. The dominant theme for news reports about lawsuits in the New York Times concerned liability, including as a potential threat to nursing homes, and political officials’ efforts to limit this liability. The top ten categories mentioning liability or lawsuits captured 177 (73 percent) of the 240 articles reported. Figure 1 reports those top ten categories. Of the 240 articles, forty-­ nine (20 percent) concerned liability for contracting the illness in a place of business or health care setting, a liability waiver for individual businesses, or Congress’s consideration of including a liability waiver in relief legislation.

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60 50 40 30 20 Total

In su ra nc e Q ua ra nt St in im es ul us fu nd in g Co nt ra ct s

0

Vo tin g Co lle ge Cl os W ur or es k co nd Li iti ab on ili s ty fo ri lln es s

10

Figure 1. Subject areas of lawsuits mentioned in New York Times articles, March– September 2020

These articles could include the proposed shield or business’s or health care’s concerns about liability, liability in health care settings, or a business’s request that customers sign a liability waiver. Very few concerned actual lawsuits against nursing homes. On May 13, 2020, the reporters Amy Julia Harris, Kim Barker, and Jesse McKinley did report that suing nursing homes would be exceedingly difficult, given liability protections that nursing homes had long fought for (Harris, Barker, and McKinley, 2020). Even so, only a few days later, the reporter Nick Corasaniti reported on Nils Lofgren, a guitarist with the rock-­ and-­roll superstar Bruce Springsteen, who planned to sue the nursing home where his mother-­in-­law resided and where she had contracted COVID-­19 (Corasaniti, 2020). Tying celebrity—a rock guitarist—with illness and a threat to sue results in a much more vibrant story than one about limits to nursing home liability. The story did not report that winning would be difficult, despite what the reporters for the same newspaper had reported a few days earlier. The significance of Republicans’ and business’s way of framing this liability discussion meant that the subject appeared in news stories about relief legislation and preventing lawsuits, not in new stories about actual lawsuits. For example, when they covered the possibility that businesses would soon be opening again, reporters chose to cite business representatives about liability and illness rather than ask if the rapid spread of COVID-­19, or uncertainty about the spread, posed an obstacle to reopening. “The biggest push, business groups say, is to give companies enhanced protection against lawsuits



Tsunamis, Explosions, and Misdirecting Metaphors 95

by customers or employees who contract the virus and accuse the business of being the source of the infection” (Tankersley and Savage, 2020). These news reports largely took it for granted—as did the senators in their liability discussions—that people would contract the illness. The only question was ensuring that those who became ill could not blame someone in court. Senate leadership was anticipating future lawsuits, not decrying current ones. They were referring not to nursing homes, prisons, jails, or meatpacking plants, all sites of early outbreaks, but to liability for the caretakers—nurses and doctors—and business owners. Senator Cornyn appealed not to the needs of the large meatpacking industry, which stayed open under the president’s executive order, but to “marginal” businesses. In the previous quotations, officials described all of these businesses in very general terms, which were less likely to evince an emotional reaction than if they had shared stories of those injured, or of the specific conditions in which someone worked. The particular stories that could arouse sympathy included tales of people with family members who died in nursing homes, several of which were reported in the Times (e.g., Barker, 2020). The business groups and Senate leadership argued that liability protection was practical. The expectation that the only question left about reopening businesses in April 2020, less than two months into the pandemic, was liability for illness, not death and illness and an inability to contain COVID-­19 surges, looks either clueless, heartless, or heartbreakingly naive today. Nevertheless, after the initial lockdown, partisan differences charged arguments over shutdowns and what they accomplished, as everyone decided in the absence of definitive information about where and why cases were worst, what worst even meant,1 and what worked in managing outbreaks. Florida governor Ron DeSantis lifted an order closing businesses in September 2020 on the belief that restrictions were costly and did not manage deaths (State of Florida, 2020c). The Times also reported some skepticism about the need for limiting employers’ liability in the pandemic, thus responding to the Republican arguments. News stories described legal rules that would make bringing successful cases difficult. These articles explained that people would need to prove they had contracted the virus at work before they could receive money from an employer, and proving one became sick at work when the virus was so widespread would be difficult (Beachum, 2020). These stories about how existing legal rules deflect liability rely on a level of legal detail that reports about fearful business owners did not. Reports about illnesses in nursing homes also allowed reporters to describe the nursing homes’ successes in

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limiting their liability earlier. Nursing homes in the State of New York had extensive early outbreaks. Governor Cuomo held nationally broadcast press conferences early in the pandemic, so the reporting on nursing homes could also draw on a national political figure, who attract more news coverage than local officials do (Barnes and Burke, 2015). The dominant story about litigation is that Americans litigate their injuries frequently, and often litigate trivial injuries. That story goes on to treat as common sense the belief that predatory lawyers and an incomprehensible jury system reward people who sue wrongfully (Hans, 2000; Haltom and McCann, 2004). This narrative is so powerful that it has influenced jury members, and a counternarrative is difficult to get from the news (Barnes and Burke, 2015). The outlook expressed during the pandemic by Republican political officials resonated with years of such reporting. In the past, those who would trivialize complaints had relied on selectively telling the story of a particular lawsuit to minimize the injury and overstate an award, and then using that lawsuit to stand in for all lawsuits and injuries (Haltom and McCann, 2004). Trivializing would be more difficult, however, when the lawsuits were prospective, when the stories currently in the news concerned laborers in meatpacking plants and elderly individuals dying in nursing homes, and when the overarching narrative concerned a global pandemic. News reports centered on the Senate’s claims that people would litigate over liability for catching COVID-­19 from workplaces, thus contributing to keeping people home and bankrupting businesses. Although these reports followed what national political officials said, some also told of experiences, such as a family member’s death in a nursing home (Millrood, 2020). At the national level, political officials were not quoted discussing how to improve conditions, but how to protect businesses. Early on, bringing people who were often out of sight into public view, as reporters sometimes did (Barker, 2020), could require relying on secondhand accounts from family members, since confined spaces were closed. In sum, three different discussions about liability made it to the Times in the early phase of the pandemic: discussions about liability waivers, centering on Congress’s discussions; discussions about liability for illnesses in nursing homes; and discussions about business owners requesting individual liability waivers. Table 1 presents exemplary quotations from each kind of story. Very few stories had any actual lawsuits to discuss. Those that did could report cases filed, not cases settled or decided. Reporting filings contributes to a sense of widespread litigation with large rewards, even if cases later are



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Table 1. Reporting Liability (Quotations from the New York Times) Category

Quotation

Nursing homes

The New Jersey lawsuit, filed on Wednesday against Alaris Health at Hamilton Park in Jersey City by a former nurse, alleges that another employee, a certified nursing assistant, was probably exposed to the virus from a patient readmitted from a hospital. (April 24, 2020) “If people don’t come and businesses are afraid to open because of the lawyers that are lurking on the curbside outside their doors, we won’t have the reopening we want,” he said late last month. He warned of “years of endless lawsuits” from employees and customers flooding the courthouses with claims that a business’s negligence infected them with the virus. He’s called this supposed wave of litigation a “second pandemic.” (May 15, 2020) Whether companies are liable if their workers and customers catch the coronavirus has become a key question as businesses seek to reopen around the country. Companies and universities — and the groups that represent them — say they are vulnerable to a wave of lawsuits if they reopen while the coronavirus continues to circulate widely, and they are pushing Congress for temporary legal protections they say will help get the economy running again. (June 20, 2020)

Proposed federal legislation

Waiver requests by businesses

dismissed, dropped, or settled (Haltom and McCann, 2004). The cases that were discussed involved nursing homes, meatpacking plants, and the workers on cruise lines, not the small business owners who were afraid to reopen exemplified in the quotations from members of Congress. In order, the next most common stories that appeared in the Times concerned work conditions (27, or 11 percent), closure orders (24, or 10 percent), colleges (20, or 8 percent), and voting (16, or 7 percent). Combining challenges to closure orders with lawsuits about quarantines yields 32 stories (13 percent of the total) about the basic public health measures states took early in the pandemic: quarantines, and closures. The timeframe under consideration—the first six months of the pandemic—is too early to capture the numerous lawsuits that eventually concerned the election, both before and after. Stories about lawsuits, whether filed or potential, on behalf of those incarcerated or detained and therefore at serious risk of illness from an

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virus spread through the air constituted 6 (2.5 percent) of the 240 stories. In the news reports, college closures, and the possible attendant litigation over tuition refunds, gained greater news coverage than the safety of p ­ eople who were detained or incarcerated. Students in colleges could go home and did; incarcerated and detained people could not. Colleges scrambled to accommodate those who had nowhere else to go. People leaving college had the resources to complain in public. Incarcerated and detained people could not freely go to the press. Stories about closure orders in the states in news articles repeated the broader framework the president had relied on in his speeches and tweets— namely, his juxtaposition between “opening up the economy” and public health or protecting people’s safety. Table 2 includes quotations from articles concerning lawsuits about closures; the cases were in both state and federal courts. They could juxtapose the orders from governors either to close schools or, in Florida’s case, to open schools, with safety. Republican Senator McConnell had argued on April 27, before either the summer or winter 2020 surge in cases, the reason businesses would not reopen was the threat of liability. Juxtaposing “the economy” with public health made “the economy” something separate from the people who worked, went to school, played, fell ill, and needed health care. Table 2. Reporting lawsuits about closures (quotations from the New York Times) Title

Quotation

Florida Judge Strikes Down Order Requiring Schools to Physically Reopen Amid Covid-19 Risks

A Florida judge ruled on Monday that the state’s requirement that public schools open their classrooms for in-person instruction violates the Florida constitution because it “arbitrarily disregards safety” and denies local school boards the ability to decide when students can safely return. (August 24, 2020) In a civil complaint filed in state Superior Court, they contend that Gov. Philip D. Murphy “exceeded his authority” and violated New Jersey’s constitution when, on March 21, he closed many businesses in hopes of slowing the virus’s spread. (May 22, 2020) The Justice Department on Sunday said it was siding with a Virginia church that is challenging that state’s stay-at-home order. (May 4, 2020)

Nearly 1 in 4 New Yorkers Needs Food as Pandemic Persists

Trump Says U.S. Death Toll Could Reach 100,000



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Some of the reports about closure orders concerned places of worship, allowing advocates to counter the need for health protection with a constitutional right, the free exercise of religion. Including places of worship in closure orders in the states had the effect, intended or not, of allowing activist groups to litigate the Constitution. Litigation groups and other advocates could cite the First Amendment, which protects the free exercise of religion, when opposing closure orders. Complaints about these orders as applied to places of worship served the president’s electoral concerns. The president continued to have substantial support among white evangelical Christians, and the president’s team encouraged these voters to turn out in the election in November 2020. I discuss these cases in greater detail in the next chapter. Although the administration of the November 2020 election was still to come, special elections and contests over mail-­in ballots offered early opportunities to contest access to the vote. Republican Party efforts to restrict votes combined with official partisan skepticism about the seriousness of the pandemic to challenge rules allowing people to vote by mail or to vote over an extended time period. I will illustrate these contests in the next chapter, where I discuss constitutional claims. Of the remaining stories, sixteen (7 percent of the total) concerned either insurance or contracts in the pandemic. Businesses requested that their insurance companies pay for “business interruption” in a disaster, a provision in insurance policies. Insurance companies contested these claims, arguing that business interruption insurance did not cover a virus. Other cases of business disputes with small numbers of news reports included reports about bankruptcy (4 of 240, or 1.7 percent), environmental rules (6 of 240, or 2.5 percent), and settlements and disputes about prepandemic pricing, with one each. Cases about rules that favor or disadvantage different businesses both did not have national political officials discussing them every time they discussed proposed legislation, and they do not fit into the partisan polarization about public health orders or about personal responsibility and liability. In sum, reports about liability and contests over whether to limit liability dominated the news about lawsuits during this period. By following the pandemic, however, news reporters could draw attention to the most vulnerable, those who are often out of sight: people in nursing homes, meatpacking plants, and prisons. Republican senators tried repeatedly to urge enacting limits to litigation as a solution to the problem of closed businesses. As the vulnerable and marginalized, including health care workers, really were falling ill, and as the more affluent really were losing money on tickets they had

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purchased or insurance payments they had not received, Republican leaders could not appeal to the same stock villains that often populated complaints about lawsuits. In the beginning of the pandemic, before there could be any trials about work conditions or illnesses, there were no trivial complaints or confused juries.

Cases Filed

How did these news reports fit with the cases filed early in the pandemic? Usually it is not possible to check news reports against the kinds of lawsuits filed across legal categories. Before the pandemic, many studies of lawsuits relied on decided cases in particular states, or across the federal system. The cases reported in official reports do not represent all the cases decided, and they are not a random sample. Any picture of lawsuits based on reported cases is necessarily partial. Following cases filed rather than outcomes in final courts of appeal is critical to gaining a window into the problems that people experienced. Most cases do not reach a final decision from a high court of appeal. Understanding the problems people encounter thus requires examining courts for the cases they see, not for everything they decide. Studying cases filed also invites a more nuanced interpretation of power and a broader understanding of how litigation matters. In real life, settlements, dismissals, and decisions from lower courts are how most people usually experience the court system. Where do cases begin? Many wrongs that people experience never even make it to court (Felstiner, Abel, and Sarat, 1980). Claims that do make it start in trial courts, which first draw together stories crafted as legal problems. Trial courts can make temporary orders or final decisions. Orders or the court filings can then disappear, as happens when other officials do something about a problem, when an upper-­level court dismisses a claim, or when a business or government agency settles. The courts’ influence includes guiding settlements and deflecting decisions so they do not have to declare winners and losers. The significance of cases in outcomes can be ambiguous. Interest organizations and individuals who file lawsuits can claim their lawsuit caused an outcome, while those who settle can claim the lawsuit had no effect. Difficulty in determining the numbers of claims made in court or what happens to them has allowed law firms or groups such as ALEC to amplify



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concerns about lawsuits, often without nuance or details about the cases, and without fear that anyone can check these warnings across all states or courts. A professional perspective, where every problem looks like a potential lawsuit, fits with the difficulty of finding systematic information, so those who amplify the threat of lawsuits may believe the threat is real. However, arguments often rely on generalizing from an unusual case, moralizing about complaints and the importance of individual responsibility (Haltom and McCann, 2004), or relying on vague metaphors about threats. In the pandemic, employment law firms could warn employers of impending “tsunamis” or “waves” of lawsuits (Dyess, 2020; Gonnell and McGuigan, 2021). A metaphorical tsunami is difficult to measure. In the pandemic, law firms reported case filings before courts could decide the cases. The range of cases filed and reported on widely available websites allows us to contrast what people found worthy of filing complaints about with the news reports themselves. Because no one can report all the cases filed throughout the United States, the data on case filings are most useful for making comparisons to assess attention compared with cases, not for analyses of variation that could lead a reader to misguided certainty about conclusions. The law firm Hunton Andrews Kurth aimed to collect all cases mentioning COVID-­19. Because there is no one place to collect all state cases, the database is likely to capture the range of cases, in a number that is possibly approximately proportional to the number filed. It could not possibly capture all the state cases filed. As of September 28, 2020, the COVID-­19 Complaint Tracker (CCT), which aims to track all COVID-­19 related cases filed in state and federal court, listed 5,169 lawsuits filed (Hunton Andrews Kurth, 2020). The cases are reported in the following table, and the report relies on the law firm’s coding (Table 3).2 As seen in this table, insurance claims predominated, with 1,171 cases filed. Claimants argued that their insurance companies owed them payments for business interruption due to disaster, given their losses due to closures in the pandemic. Organizations sued when their insurance companies would not pay. Next were cases concerning civil rights, including challenges to closures, whether by businesses, interest organizations, or places of worship. Then came cases challenging detention. The contrast between the news reports and the case filings is stark. The categories of cases reflect almost the inverse of what the New York Times reported. The greatest numbers of cases received many fewer news reports than categories with small numbers of

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Table 3. The Coronavirus Complaint Tracker, September 28, 2020 Category Insurance Civil Rights

Habeas / Confinement conditions / ­Prisoner and Detainee Petitions Labor & Employment

Real Property

Contract Disputes

Subcategory

Business closure, stay-at-home order and group-gathering-ban challenges Other Other public safety measures (including private parties trying to enforce government bans) Voting FOIA disputes Essential vs. non-essential designations of businesses Government taking / commandeering of property Schools closing Withholding of funds

Unlawful termination Conditions of employment (including lack of PPE, exposure to COVID-19 at work, wrongful death and personal injury) Under-, over-, and non-payment issues / wage issues (FLSA, state, local law) Leaves of Absence (FMLA, FFCRA, State Law) Discrimination (Age, National Origin, and Sex, Pregnancy) Other Retaliation Disability Disputes (ADA and State Law) WARN Act (federal and state law) Landlord / Tenant issues (eviction and failure to pay rent and failure to extend lease) Other Refusal to extend closing date Mortgage disputes Damage to property Failure to refund (non-class, non-consumer) Other

Cases 1,171 927 321 203 164 124 44 40 16 10 5

645 636 344 93 66 45 36 33 18 4 1 397 285 84 16 10 2 329 135 71



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Category

Subcategory Cancel or suspend contract performance for force majeure or related common law principles Failure to close a deal due to COVID-19 (includes force majeure and related common law principles and “material adverse change in condition” clause cases) Termination of supply contract Event cancellation (non-class, non-consumer) Construction cases

Consumer Cases

Education

Non-education related cancellations or postponements (e.g. prepaid air, cruise, event tickets, vacation property rental) False advertising or UDTPA-type claims Recurring membership fees charged during shutdown Price gouging Other Personal injury (i.e., from exposure to COVID-19 in a public place) Products liability Wrongful death (i.e., from exposure to COVID-19 in a public place) Request for refund Other

Health / Medical Banking / Financial services Misc. Tort Not Coded Securities Litigation None Intellectual Property Challenges against Foreign Sovereigns or NGOs Trade Total Source: Hunton Andrews Kurth Coronavirus Complaint Tracker

Cases 50

24 19 16 15 316 152 60 28 26 21 20 5 5 258 210 48 107 99 76 57 35 25 24 12 1 5,169

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cases. Liability for contracting the virus resulted in almost no court cases but extensive reporting. Lawyers tried to get people out of detention around the country, but safety conditions in jails or prisons gained only about one-­sixth of the number of stories that liability did. Many people could leave colleges, but incarcerated people could not leave detention centers, jails, or prisons, nor could they control the safety conditions. The legal problems that closing colleges brought about gained more than three times the coverage that detention or incarceration did. The second largest category in the case filings reports is civil rights, with 927 cases. Of those, 321 challenged state public health measures, including restrictions on the size of gatherings, or closure orders. Additionally, 645 challenged detentions. Lawyers for persons detained in jails, prison, or immigration detention centers challenged these detentions during COVID-­19 as violating safety standards. Consumer complaints concerning refunds or canceled events (two different categories in the CCT) resulted in another 287 cases. Requests for refunds in education amounted to another 210. More than half the cases, then, centered either on insurance, civil rights, or challenges to detentions. Private governance through insurance, divisions about closure orders, and mass incarceration all link to COVID-­19. Of these three, disagreements about closure orders follow national partisan divisions. Decreasing incarceration has found some agreement across party leaders that seldom translates into concrete support for releasing people. Cases concerning liability for workplace conditions represent only a tiny portion of the cases reported in the CCT, despite how much news coverage the fear of liability received. Senate leaders had argued that their concerns about liability were practical, being necessary for the United States to gain its footing in the pandemic. In April 2020, just six weeks into the pandemic and before the summer and winter surges, Senators McConnell and Cornyn had argued businesses would be able to open if they could receive assurance that they were not liable for people who became ill there. (The statement did not discuss state closure orders that state governors issued.) Even without the restrictions, however, the cases that the Senate had earlier argued must be prohibited were not appearing in court. The lack of such cases affirmed the statements made by law firms and others declaring that it was unlikely that anyone could successfully claim they had gotten sick at work. Those at great risk and earning low wages, such as people working in meatpacking plants early in the pandemic, would have to have found lawyers who could see taking the case as valuable.



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The Senate had succeeded in enacting legislation that would limit liability for health care workers but not all employers. States that wished to enact a version of ALEC’s model legislation could take care of the rest. National political officials, including senators and presidents, have little reason to decry lawsuits about insurance payments, refunds, or interpretations of a new federal statute. These lawsuits are not headline grabbers. They do not claim new rights, they are caught in the nuance of statutory interpretation and the interpretation of contracts, and they do not concern constitutional law. They are about businesses asking for compensation for loss based on an insurance policy they had paid for and another business, the insurance industry, arguing that the losses were not covered. Such cases do not neatly fit into a frame of markets, individual responsibility, or the morality of both. Thus lawsuits about any of these amount to claims relying on contests over what it means to follow the terms of a contract. They do not claim a right to sick leave, child care, or housing. They do not involve individuals who might threaten businesses, by, as Senator McConnell had put it, waiting to leap on a business owner who did not enforce six feet of distancing, but claims that businesses should live up to ordinary legal responsibilities. In their very ordinariness, and their diffusion across the states and in state trial courts rather than their concentration in one place or in the Supreme Court, these cases were unlikely to dominate public awareness, debate in Congress, or the news. The employment law firm Fisher Phillips later coded the employment law claims that it could identify. The most common cases it found concerned an employer’s provisions for remote work. The Families First Coronavirus Relief Act, enacted one week after the pandemic was declared, had created the opportunity for this litigation by providing for emergency paid leave and telework for those whose jobs could allow it, relying here also on the prepandemic Fair Labor Standards Act. Most of the claims Fisher Phillips reported revolved around employers who would not grant remote work, contrary to the new federal law. The United States does not offer paid family leave. In the pandemic, legislation for remote work and for extended unemployment insurance was thus the only substitute for generally available child care or extended family leave. The United States did not have the infrastructure to support parents who needed to work remotely and care for their children. The failures in supporting working families changed political alliances, and a national requirement of leave enacted by the federal government briefly seemed possible (Htun, 2021).

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The following is a table of organizations and the types of cases that appeared in my reading of the data from the CCT (Table 4). It lists litigators who brought multiple cases. Since it relies on the CCT, it will miss litigants that the tracker missed. This table cannot include every organization that brought suit in a rapidly changing environment as gathering all the cases filed across the states is difficult. All the organizations listed have long histories of litigation or could have participated in established networks with experienced litigators.3 Interest organizations brought cases about closure orders in the states and about detention. Private attorneys brought cases about insurance claims. Some brought multiple cases; they might have already had expertise as lawyers suing insurance companies or developed that expertise in the pandemic. Cases where people might gain an insurance settlement were likely to have one kind of attorney. Cases claiming to have constitutional principles at stake, principles that existing partisan divisions could amplify and that could go to the Supreme Court, would be likely to have attorneys with different expertise. Anyone with the resources could bring cases, however, thus diffusing the responsibility for what states did and limiting the control governors or state legislatures had. Even if courts eventually upheld emergency closures, litigation took time and contributed to uncertainty. At a minimum, the groups that were involved in litigating did not have public health as their sole concern.

Table 4. Groups and Types of Plaintiffs and Cases Interest Organizations / Type of Plaintiff Pacific Justice Institute Upper Midwest Law Center Institute for Justice Alliance Defending Freedom Teachers’ unions State attorneys general, Governors, Legislatures; Party National Committees Private attorneys

Source: Hunton Andrews Kurth

Type of Cases Closure orders (California) Closure orders (Minnesota) Closure orders Closure orders School openings International student visa revocation; Closure orders; Elections; USPS changes; Mail-in ballots; Census Cancellations and refunds; University refund cases; Collaborations with public interest cases re e.g. detention, incarceration, ­closure orders; Sick leave.



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What was the end result? Outside constitutional law, what makes the news doesn’t make the courts and what makes the courts doesn’t make the news. Insurance cases about business interruption dominated the court filings, not the news. The risk of liability for injuries, especially at work, dominated the news, but not the cases filed in court. Each had a history from the late twentieth century. In the first group of cases, those concerning insurance claims, companies had acted to shape the rules long before the pandemic. Insurance companies had not needed to frame the problem in a way that would resonate across multiple publics to gain favorable rules. They did not have to frame complaints about insurance as about moral worth and responsibility, which businesses did concerning liability for injuries, and business organizations had made politically salient for many years. What, though, did these business insurance cases look like? What specific insurance provisions did they contest?

Insurance: Public and Private Compensation Senator McConnell and others argued that keeping businesses running was essential to pandemic recovery, even shortly after the WHO declared a pandemic. Compensating businesses for losses could potentially come through public money or private insurance. Either could contribute to keeping money circulating and in people’s pockets. Public money was quickly issued, whether or not it accorded with what governing officials stated about limiting public spending for individuals, in an attempt to answer for the losses the pandemic brought about. Though governing officials urged the importance of protecting businesses through liability protections, they had little to say about private insurance and whether insurance companies would pay business clients for mandated closures. On March 27, 2020, the federal government enacted the Coronavirus Aid, Relief, and Economic Security (CARES) Act, which included the Paycheck Protection Program (PPP).4 The program began accepting applications on April 3. It offered forgivable loans to businesses to keep their staff employed in the pandemic. It did not offer money for lost income or other expenses of running a business, such as rent, so it could not cover all the expenses a business could incur. The initial allocation could not cover very much per employee on any account (Beylin, 2021). To receive the money, a business had to certify that the current “economic uncertainty” meant the owner needed a loan to support “ongoing operations,” vague standards business owners could

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interpret aggressively or not, which probably accounted for some differences in which businesses accessed the money (Morse, 2021: 212–13). All of Congress’s initial allocation was spent between April 6 and April 20; two more waves of funding followed (Morse, 2021). Advantages that predated the pandemic played out in disbursing the loans. Payments in the first wave were more likely to go to ­people with existing banking relationships and less likely to reach business owners who were people of color (Humphries et al., 2020; Morse, 2021; Santellano, 2021). Businesses could also apply for loans from the Small Business Administration under the Economic Injury Disaster Loan Program (Li, 2021). This money also had minimal accountability requirements, meeting need based in disaster and emergency, not the calculability insurance relies on. Business owners subject to closure orders might file a claim with their insurance to pay for losses, under provisions in many business insurance contracts. The contract provisions they claimed under were for “business interruption” due to “physical loss or damage” during a disaster. Insurance companies often refused to pay. Insurers argued that the policies did not include losses due to a virus. Many disappointed business owners who could brought lawsuits. By September 28, the University of Pennsylvania Coronavirus Insurance Litigation Tracker (described below) had found 1,346 business insurance cases filed (about 200 more than the CCT listed), comprising 58 percent of the total 2,334 claims it listed by July 4, 2022. The Wall Street Journal described the claims and insurance companies’ refusal to pay as “one of the biggest legal fights in the history of insurance” (Scism, 2020). Those following the business press would know about it. For a while, those walking through Times Square in New York City could know about it too because an attorney for businesses that were shut in the pandemic paid for a video display with restauranteurs and entertainers urging insurance companies to “do the right thing” (Scism, 2020). But because the general news typically follows national political leaders and policy, the prominence of insurance in business press and among business lawyers, and even among the food and beverage press, did not carry over to the general press. Restaurant or hotel owners can believe they are insured if they bought insurance. Whether one is actually insured can be more contestable, though. After Hurricane Katrina, homeowners and insurance companies disputed whether policies covered losses, based on the meaning of the words in policies. Such disputes over coverage are ripe for court. In the wake of Katrina, insurance companies and the insured settled thousands of disputes about the



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meaning of words in insurance policies and whether the way that ­people’s houses suffered damage fit within those policies (Sterett and Mateczun, 2022). Even among homeowners, people can wait different amounts of time and receive different levels of payouts for damage; waiting delays housing. Delays, in turn, can contribute to inequity by race and class. When Hurricane Andrew struck Florida back in 1992, African Americans had to wait longer for insurance payouts than white people did (Baker and McElrath, 1996). More widespread inequity is likely to persist when insurance companies write policies and interpret them to protect business, and governance relies on private insurance to compensate people for losses. Toby Cecchini, a New York restaurant owner and author of a bestselling book about his bartending career (2005), published an opinion piece in the New York Times in May 2020, two months into the pandemic. His article fills out the cost of disputes over terms like “business interruption”: As one might expect from the parasitic insurance industry, the business liability insurance we are obligated to carry, at a cost of hundreds of thousands over the course of the years we’ve been in operation, now denies us any remuneration for business interruption in this crisis—even as it issues us another $14,500 quarterly bill. The current federal administration seems unwilling to take any action to address insurance companies’ refusal to compensate their captive clients for business interruption, a position the insurance industry’s lobbyists are working frantically to cement in the wake of the havoc unleashed by the coronavirus. (Cecchini, 2020) To the insurance companies, limits to coverage were already in the business contracts. Anyone who wanted coverage for interruption by a virus could have bought additional coverage. Disputes over the true meaning of “business interruption” in a contract do not invite the same passions among a general public that debate about the meaning of constitutional provisions might. To Cecchini, however, the insurance companies had collected payments without then paying legitimate claims. Cecchini poignantly reminds readers that the real cost in money faithfully but pointlessly paid for years lies in the loss of livelihoods and neighborhood businesses. When COVID-­19 struck, the first of these cases, which was filed just days after states issued orders shutting down businesses, involved five Native American tribes in Oklahoma that had to close their casinos and install additional

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safety measures to reopen. When their insurance companies would not pay, they filed suit in Oklahoma courts, not federal court. These lawsuits were among the first filed in the United States. In early 2021, Oklahoma trial courts ruled for the tribes (Cherokee Nation v. Lexington Insurance, 2021; Choctaw Nation of Oklahoma v. Lexington Insurance, 2020). This ruling is worth unpacking. A bit of background here might be helpful. The Cherokee, Chocktaw, Chickasee, Creek, and Seminole tribes, known as the Five Tribes, all operate casinos in Oklahoma. Oklahoma experienced rapid growth in gambling after it became legal in 1988. Casinos have brought money to tribes. Native Americans cannot levy taxes on people on reservations; the gaming money is the greatest source of money the tribes can distribute (Conner and Franklin, 2019). The casinos also bring money to the states through fees. In 2015, the Native American gaming industry in Oklahoma was worth $28 billion in 2013 dollars. Oklahoma reported that the gaming industry brought in more than $2 billion in 2020, down from the previous year. The fees that went to the state dropped from $148 million in 2019 to $123 million in 2020; when COVID-­19 closure orders closed the casinos, state budgets felt the impact as well (Oklahoma Gaming Compliance Unit, 2020). When the insurance company would not pay for business losses, the amount at stake led tribal leaders to turn to lawyers with expertise in working for Native American communities. Tribes filed claims in court on March 24, 2020, just two weeks after closure orders had shut down casinos, bars, restaurants, and sporting arenas throughout the country. The insurance cases came out of Oklahoma just as the Five Tribes were separately asserting their sovereignty over their land in the state, claiming that Congress had never rescinded grants from the nineteenth century. If Congress had not rescinded its land grants, then the tribes still controlled the land. The Five Tribes had been expelled from Georgia and sent on the Trail of Tears in the 1830s. Congress had granted them land in Oklahoma, but on being granted statehood, state officials and practices had ignored tribal sovereignty. In its 2018–2019 term, the Supreme Court heard arguments in a case about sovereignty (Sharp v. Murphy, 2020). The Court put off deciding the case until 2020, when it heard similar arguments (McGirt v. Oklahoma, 2020). In July 2020, by 5-­to-­4, the U.S. Supreme Court held in favor of tribal sovereignty, with massive implications for sovereignty over much of Oklahoma (McGirt v. Oklahoma, 2020). The Court continued to take cases concerning tribal sovereignty, and limited McGirt (Oklahoma v. Castro-­Huerta, 2022) by a five-­to-­four vote after Justice Amy Coney Barrett joined.



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The Cherokee Nation’s lawsuit against its insurance company turned on language in the Tribal Property Insurance Policy: was the closure due to “direct physical loss or damage” from COVID-­19, which the policy required before it would pay out? The day after the Cherokee Nation filed the lawsuit, the tribe’s insurance company added a provision stating that closure due to viruses was not covered. What was closure due to a virus, the Nation argued, however, but “direct physical loss or damage”? The insurance company responded that “direct physical loss or damage” meant that there had to be a “physical alteration” in the building, and the closures had not resulted from any such changes. In February 2021, the Oklahoma district court, which was a trial court, held that closures in the pandemic were indeed the result of the risk of direct physical loss or damage, as provided for in the insurance policy. The court noted that state courts had been asking insurance companies to clarify the meaning of the phrase but none had done so. The court also noted that the change to the policy, which was written in the day after the Cherokee Nation filed the lawsuit, could well have meant that the insurance company knew an exclusion was at best unclear. The court held that regardless of whether the insurance company was adding a new provision or clarifying an existing one, it had to rule in favor of the Nation (Cherokee Nation v. Lexington Insurance, 2020). Finally, in September 2022, two and a half years after the shutdowns started and the Nations had filed their lawsuit, the Oklahoma Supreme Court ruled against the tribes. Although the Cherokee Nation claimed that language in its policy was different from the insurance industry’s standard language, discussed below, to the Court it was not (Cherokee Nation v. Lexington Insurance Co. 2022). While these initial cases wended their way through court, other tribes were pursuing others, leading to mixed results prognosticators could try to figure out. By 2021, one noted that Native American–owned casinos had seen “mixed results” in their virus lawsuits (Rice, 2021). They turn not on the losses for businesses and danger in the pandemic, which is how legislators might discuss risk and payment, but on contracts and jurisdiction. In 2021, one legal observer argued that state courts focused on the contracts, which sometimes allowed businesses to win, and federal courts drew on previous cases to dismiss claims (Rice, 2021). Every observer was trying to assess a moving target; as time went on, not all state courts allowed the claims and not all federal courts denied them (Greenwald, 2022). State or federal, though, most courts dismissed most of the cases. Businesses that prevailed in the lower courts could then lose in the state supreme courts or courts of appeal,

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as the Oklahoma tribes did. However high value these cases might be—they affected, after all, the entire gaming industry, as well as major insurance companies facing rising and less predictable claims across disaster areas—detailed coverage came in the business press, not in the general news. Cases similar to Cherokee Nation soon appeared in courts around the country, relying on ordinary business interruption insurance rather than the specific tribal insurance. State and federal courts did dismiss many subsequent cases, not least because the insurance companies had—at least some of the time—written in exclusions earlier than the day after a case was filed, unlike in the Cherokee Nation case. Insurance policy language stated that the insurer covered “direct physical loss.” As state courts interpreted words like “direct physical loss,” they borrowed from each other, as courts ordinarily do. States can interpret their law differently, but they are interpreting similar or identical language. They may converge, even if different political parties control institutions. Judges dismiss cases when no interpretation of the law would allow someone who is complaining to win, even if every fact that someone complaining states is true. When courts dismissed cases about insurance, they were thus holding that a virus could not be a “direct physical loss.” A case brought by a minor-­league baseball team illustrates disputes over language in policies. Pennsylvania judges, interpreting an insurance policy under state law, did not agree that COVID-­19 was a direct physical loss. The minor-­league baseball franchise Lehigh Valley Baseball could not hold a season in 2020 thanks to the pandemic. Baseball was under a closure order from the state of Pennsylvania, and Major League Baseball had not supplied minor-­ league teams with players, as it usually did. Lehigh Valley Baseball filed a claim for business interruption. After the team’s insurance company declined to pay, Lehigh Valley filed a complaint in state court, on December 15, 2020. In June 2021, a Pennsylvania trial judge dismissed the case. No one denied that Lehigh Valley had lost its season and therefore its revenue, and everyone understood that the team still had expenses despite this lack of revenue. But these were economic, not physical, losses, as the legal profession parsed the words. The judge noted that Lehigh Valley claimed that the virus must have been physically present in the stadium and caused the closure. He concluded, however, that the virus did not physically alter any properties, and since “direct physical loss” meant physically altering property, the team was out of luck. Even if the virus had been found on surfaces and in the air people breathed, as the lawyers for the baseball league argued, the court concluded that the 2006 virus exclusion that was written into the policy specifically excluded loss from viruses.



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Lehigh Valley maintained that the 2006 virus exclusion restricted insurance and had been misrepresented to them. The judge said it did not matter, because the baseball team had not persuaded the judge that standard insurance would have covered the losses even before the 2006 statement (Lehigh Valley Baseball, LP v. Phila. Indem. Ins. Co., 2021). The 2006 exclusion to which the judge referred came out of the 2003 SARS epidemic, an outbreak that had included 8,098 known infections worldwide and killed 774 people (Centers for Disease Control, n.d.). The insurance industry did not expect the 2003 epidemic to be the last. The Insurance Services Organization Inc. (ISO), a company that is now a subset of a risk assessment analytics firm, sets forms and policies for the insurance industry. In 2006 ISO issued a form with language to write business interruption policies to exclude viruses.5 Although the SARS virus did not lead to millions of infections around the world, the insurance industry, like those in public health, saw the writing on the wall. More widespread outbreaks would be likely in the future. Preventing losses preemptively required writing general business interruption policies to exclude disease outbreaks. COVID-­19 proved these insurance forecasters right. Industry standards and guidance thus governed how they had drafted policies before the pandemic. The insurance companies had attempted to preempt a problem with policies that would favor their position. Insurance cases concerning business interruption soon grew so numerous that Tom Baker, an expert in insurance law at the University of Pennsylvania Carey Law School, led a team assembling an insurance complaint tracker.6 As the cases reached resolutions in the courts, the University of Pennsylvania team coded the cases based on outcomes. Because it is difficult to assemble all state court cases, the tracker cannot capture every state case. Baker’s team relied on Courthouse News, an aggregate report, for state cases. Cases concerned “business interruption” provisions in insurance policies and whether policies covered closure orders due to a virus (Coronavirus Insurance Complaint Tracker, n.d.). The courts quickly dismissed many but not all these claims. Dismissal meant that the courts had found no plausible basis for the claim. Further, most were dismissed “with prejudice,” which means that the complainants cannot file them again. Insurance companies were not paying claims when people tried to claim under provisions that would pay for business interruption. Why did the courts dismiss so many of these cases? The courts agreed with the insurance companies: policies did not cover business interruption due to the threat of a virus. They only covered losses due to physical incursion

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into a place of business. Business owners dropped other cases when judges made it clear to them they had not adequately assembled the evidence to show the virus had entered a business place (Bracken, Levine, and Beach, 2020). If there is an evidentiary question in some courts, later cases might find greater success, but the first wave did not. Like the court in Pennsylvania, other courts pointed out that the virus had not entered the places of business. Although businesses are insured all over the United States, 60 percent of these cases filed in state or federal court came from just six states: Pennsylvania, California, Florida, Illinois, New York, and New Jersey (Anderson et al., 2020). The larger number of case filings in Pennsylvania could well be driven by legal strategy. Early in the pandemic, lawyers for businesses trying to gain insurance payments for restaurants, businesses, and hotels that were shuttered in the pandemic tried to consolidate cases into multidistrict litigation, which would centralize case management and thereby simplify bringing the cases. Pennsylvania and Illinois were both possible sites for the multidistrict litigation if it went forward. In August 2020, the federal panel responsible for determining whether cases could be consolidated ruled against the request, holding that the cases were not similar enough and did not share common defendants. There were too many states, too many legal provisions, too many small business owners, and too many insurance companies (Kaczmarczyk and Klein, 2020; Bracken, Levine, and Beach, 2020). In the first year of the pandemic, many cases were ongoing, particularly in some of the busiest states, Illinois and Pennsylvania.7 A plurality in the two states with substantial restaurant, hospitality and tourism, and business travel trade—New York and Florida—were voluntarily dropped or dismissed. In late 2021, a plurality of the cases in California were on appeal. By late 2022, insurance companies’ victories dominated (Coronavirus Insurance Tracker, n.d.). Lawyers from the law firm Hunton Andrews Kurth wrote in an insurance law report in December 2020 that while the courts had dismissed many cases, they had not dismissed all of them (Bracken, Levine, and Beach, 2020). They read the cases closely and described different courts’ reasoning. The editor and reporter for the Wall Street Journal Leslie Scism claimed the courts could easily dismiss early cases because the small businesses that brought suits early had standard policies. By 2021, she wrote, larger businesses were starting to sue, and they relied on experienced attorneys (Scism, 2021). Their more tailored policies might well not fall into the same category of easily dismissed claims. The business litigation would continue to roll out and was covered in the business press, such as the Wall Street Journal, but not dominant in the



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general press. Restaurants, salons, and hotels that had shut and seen their business drop off in the pandemic, and those that had not received payments from the federal government, could be forgiven if owners and the employees whose work disappeared did not find disputes over the meaning of words compelling when insurance failed to cover their losses. Insurance companies have every reason to pay more attention than small business policy holders to how insurance policies are written and what words would ordinarily mean. Insurance companies insure businesses for a living, and they insure thousands of businesses. For small business owners, an insurance policy and its meaning form just one part of running a business, and one part of their broader lives. They have little reason to think about potential future unimagined claims and little ability to rewrite standard policies. On the other hand, the industry would have every reason to think about such future possibilities, since insurers are responsible for the aggregate costs of many claims and an industry association can respond. Some state legislatures responded to these lawsuits and decisions. The idea of mandating what insurance would cover in the pandemic appealed differently depending on the political party. In the 2020 and 2021 legislative sessions, eleven states considered legislation that would require business interruption insurance to cover closures due to a virus (Morton, 2021a). This legislation would counter the exclusions instituted after the 2006 guidelines. Democrats controlled the state legislatures and the governor’s house in most states where bills aimed to require the virus to be interpreted as a direct physical loss in business interruption policies. Of the eleven states considering the legislation (Table 5), the Democratic Party controlled both the governor’s office and the legislature in nine. Pennsylvania split control between Republicans, who controlled the legislature, and the Democratic governor. Pennsylvania was also the state where many cases were filed with an eye to consolidating litigation. Texas also considered legislation; the Republican Party controlled both the legislature and the governor’s office. Of the sixteen states that the Democratic Party controlled, nine considered legislation about business interruption insurance. Of the twenty-­nine states where the Republican Party controlled the legislature and twenty-­two where they held both the legislature and the governor’s office, one considered such legislation. Given that the courts were overwhelmingly dismissing claims against insurance companies, defining business interruption would be done for the businesses that were suing. The legislation, if enacted, would surely be challenged in court. The conservative argument for markets and private responsibility for

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Table 5. States Considering Legislation Defining Business Interruption in 2021 Sessions State

Legislature

Governor

California Illinois Maine Massachusetts New Jersey New York Oregon Pennsylvania Rhode Island Texas Washington

Democratic Democratic Democratic Democratic Democratic Democratic Democratic Republican Democratic Republican Democratic

Democratic Democratic Democratic Democratic Democratic Democratic Democratic Democratic Democratic Republican Democratic

Source: Morton, 2021b

well-­being (Brown, 2019), for example, through insurance contracts, would seem to have little to say about contests between businesses over contracts. Business owners could see themselves as having taken responsibility. Insurance companies disagreed. The insurance industry responded to proposed state legislation and to the losses people complained they had incurred. In a webinar held in February 2021 and made available through the National Conference of State Legislatures (NCSL), an insurance industry representative said that the losses from paying COVID-­19 claims would destroy the insurance industry if they were covered, while assuring viewers that they were not (National Conference of State Legislatures, 2021). The industry anticipated the problem in how it wrote its policies, so that claims against insurance companies in court were unlikely to succeed. Since the insurance industry representative and others anticipated pandemics or other catastrophes in the future, he agreed that legislators might want to do something to ensure that businesses could be paid without driving the insurance industry out of business. He proposed that only the federal government had the capacity to finance a large-­scale plan covering business losses when closure orders or other massive claims were in place. He suggested that the insurance industry partner with the federal government to administer such a plan (NCSL, 2021). This model of the insurance industry running a plan funded by the federal government would echo the Affordable



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Care Act’s subsidy for private insurance and the National Flood Insurance Program’s subsidy for housing in flood zones. Thanks to the latter, many people in the United State do not pay costs that accurately reflect the risks of building in flood zones in a changing climate (Elliott, 2021; Pralle, 2019; Strother, 2018). Insurance companies impose conditions or raise the cost of fire insurance in high-­risk zones or refuse to issue it; state governments try legislating moratoria. Businesses and private insurance are both part of a system that is tightly coupled with the risk of a pandemic, which is tied, in turn, to global travel and to land use in a changing climate. The interactions among these factors were ignored by leading public health writers who wrote early in the pandemic. With a public program of the kind the insurance industry representative suggested, insurance industries would offload their growing risk in a changing climate to the federal government. That system, were it ever enacted, would organize the insurance market with national subsidies. Expanding health care in the face of an expensive system has been a signature public policy initiative for multiple Democratic administrations. For some time, then, scholars have readily included governing with private health insurance as integral to public policy discussions (Gottschalk, 2000). Fewer have included other forms of insurance in analyses of mixed public and private governance in the United States, though the insurance industry’s risk calculations and pricing promise to govern disasters in a changing climate (Beck, 1992; Collier, Elliott, and Lehtonen, 2021). The federal government has subsidized flood insurance in the United States because the price of wholly private insurance has been politically unacceptable (Collier, 2014; Elliott, 2021). The mixture of public and private raises profound questions about responsibility in a changing climate (Collier, 2014; Elliott, 2021). Privately administered insurance promises to limit public spending by requiring individuals to take responsibility, but disasters bring about public spending without depending on risk calculability, as the pandemic did. Inequity in insurance between homeowners and renters is key, for example, to inequality in disaster (Sawada and Yoshido, 2017). More familiar disasters, including storms and fires, evoke the physical losses people expect to be covered by insurance; insurance companies sometimes fight those too in court, as being unmanageably large for the industry (Sterett and Mateczun, 2022). In short, early in the pandemic, insurance disputes proliferated but the courts largely dismissed them. What was the outcome? It was multiple “what-­ ifs”: If business owners had not thought they were covered, perhaps fewer people would have filed cases. If the insurance industry had not succeeded in

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writing contracts that anticipated pandemics and fighting earlier cases about disasters, perhaps fewer would have been dismissed. The much warned-­ about liability claims never even showed up in courts; nuance in the rules that political officials alluded to would have made suing for catching a virus when shopping in a grocery store very difficult to do. Nursing homes saw the greatest numbers of COVID-­19 deaths: when states granted immunity from liability to health care workers and facilities, they were often covering these nursing homes. But nursing home operators had already found other ways to limit their liability.

Responding to Phantom Liability Cases

Business owners largely lost in state and federal courts when asking for insurance companies to pay out. State legislatures tried responding to offer help. The U.S. Senate, however, defined pandemic liability and its limits very differently. Their proposal to limit liability for businesses in case people got sick might not have been a response to actual lawsuits, but it accorded with the work of the conservative powerhouse ALEC, which had long proposed model legislation about compensation for injuries in the United States. Although it could perhaps appear as an obscure detail about legal rules, this effort resonated with images of litigation and responsibility. With ALEC’s model legislation, many states responded to what it described as the threat of liability in a disaster. In American life, filing suit after an injury is a well-­known trope and a well-­worn pathway for debate (Haltom and McCann, 2004; Barnes and Burke, 2015). In the past, news stories often portrayed individual claims as unjustified and the individuals making these claims as greedy and irresponsible, omitting details that would make their claims more compelling, and drawing on the story pitches that insurance companies shared. For example, in a widely reported 1994 lawsuit against the fast food company McDonald’s for serving coffee that severely burned Stella Liebeck in 1992, the media first reported this complaint as self-­evidently ludicrous. Left out of the story is the care that the burned woman needed, and the relative who would care for her but could not do it without any money—and who had no paid family leave (Haltom and McCann, 2004). Deploring Americans for litigating injuries ignores the lack of alternative compensation many experience, as well as the lack of support available for caring for families. News reports also seldom give the same attention to the difficulties in recovering any awards that



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the fortunate few do receive (Haltom and McCann, 2004; Barnes and Burke, 2015). For years, the insurance industry influenced ideas about litigating in the United States by disseminating the greedy-­American trope through such stories. These narratives deftly supported the insurance industry’s goal of limiting awards for damages (Haltom and McCann, 2004), which ALEC can pursue by offering model legislation for the states. Despite the long-­standing cultural power of decrying litigation for injuries in the United States, and despite the power of organizations that opposed liability, federal legislation opposing pandemic-­related liability did not succeed. Although the federal CARES Act (2020) for aid in the pandemic did exempt volunteer health care providers from liability for “acts or omissions” when caring for COVID-­19 patients, that was as far as federal liability exemptions reached (Morton, 2020). Opposing liability in the pandemic then shifted to the states. State legislatures took up employers’ liability shields after the federal shield failed in Congress (Swanson and Rappeport, 2020). By summer 2020 the conservative organization ALEC had put together a model statute for the states to take up. By spring 2021, the Guatemalan construction workers living in Florida who had found the virus spreading rapidly through their communities the previous summer would meet a liability shield precluding lawsuits that were already unlikely. ALEC could propose model legislation in the states and state law would govern many lawsuits about liability, whatever the federal government did. ALEC entered the arena with substantial experience, having long worked in the states to limit liability for lawsuits (Hertel-­Fernandez, 2016). Its work also overlapped with democratic backsliding, as ALEC had also shared model legislation to restrict voting in the states (Hertel-­Fernandez, 2019). Legislation in the states (synthesized later in the chapter) also exempted employers who followed good ordinary health practices from liability, which was already the ordinary legal standard. This legislation expanded liability exemptions for any reason during an emergency, continuing the longtime work of ALEC, more than solving a real problem with pandemic liability. Limiting liability in the states in the pandemic largely followed partisan control. As of summer 2021, forty-­one states and Puerto Rico were considering or had enacted some form of limited liability for employees or customers who contracted COVID-­19 (National Conference of State Legislatures, 2021) (Table 6). Twenty-­five of the states had enacted the legislation. Fourteen of those twenty-­five had enacted the legislation in 2020, early in the pandemic.

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Table 6. Limiting Liability in the States Party control

Yes

No

Total

Republican Legislature Democratic Legislature Non partisan or split legislature Total

  97% (28)   56% (10) 100% (3)   80% (41)

  3% (1) 44% (8)   0% (0) 20% (9)

29 18  3 50

Sources: Akin Gump Strauss Harrar and Feld, 2021; Husch Blackwell, 2021; Lewis Brisbois, 2021; Morton, 2021a; Ogletree Deakins, 2021.

Most legislation promised exemption from liability for those who followed prescribed health standards, a standard that was already commonly in use in legal liability. All the twenty-­nine states with Republican-­controlled legislatures had enacted or were considering the legislation. Ten of the eighteen states with Democratic Party–controlled legislatures considered the legislation, which was still a substantial percentage, possibly indicating how readily available the language for limiting liability was. New statutes were not designed to compensate those at greatest risk from illness and death; they would do little for people whose family members died in nursing homes. Corporations managing these nursing homes had long managed their assets to limit how much they would pay if people found legal violations in how they maintained their facilities (Brickley, Lu, and Wedig, 2017). Workers faced a different scenario. Those who fell ill could turn to workers’ compensation, a bureaucratic system that compensates people who are injured at work. First instituted in the early twentieth century in the United States, workers’ compensation today is operated by the states, with employers paying into the system. To qualify for support, a worker needs to prove they were injured on the job. People could be injured at work with COVID-­19, but proving causation could be difficult, as legal blogs had already reminded employers (Nakase, 2019). States could solve the challenge in favor of workers by writing rules to favor workers’ claims, and nineteen states plus Puerto Rico did just that. They enacted legislation stating a “rebuttable presumption” that COVID-­19 among people who worked as frontline workers would be attributed to the virus at work (or if not using this exact language, they made some other statement opening up options for workers’ compensation). Eight of the sixteen states with Democratic legislatures and eight of the twenty-­nine states with Republican legislatures clarified, for the purposes of workers’ compensation, that COVID-­19 was an occupational hazard for health care workers.



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Table 7. Affirming Workers’ Compensation in the States in the Pandemic Legislature / Governor Democratic / Democratic Democratic / Republican Republican / Democratic Republican / Republican Split or Nonpartisan ­Legislature / Either Party Totals

Extended or Affirmed

Pending as of 2021

Did Not Extend or Affirm

Total

  53% (8)   33% (1)   43% (3)   27% (6) 100% (3)

1 1

40% (6) 33% (1) 57% (4) 73% (16)  0

15  3  7 22  3

  42% (21)

2

54% (27)

50

Source: Akin Gump Strauss Hauer & Feld (2021).

Fifty-three percent of the states with Democratic legislatures and governors and 27 percent of the states with Republican legislatures and governors enacted legislation for workers’ compensation regarding COVID-­19 (Table 7). Even outside the light and heat of liability politics, existing compensation programs found some partisan disagreement. By simplifying the claims process, the states could simplify compensation without ever engaging in debates about the abstraction called the economy, or about individual responsibility or frivolous lawsuits. Even so, most Republican-controlled states did not affirm or extend. To summarize what we’ve seen so far: In the early months of the pandemic, lawsuits about liability for contracting COVID-­19 in a business, including claims that nursing homes were responsible for those who fell ill within their facilities, were not coming before the courts. State legislatures responded differently to the threat of these claims depending in part on partisan control. Republican-­controlled states were more likely to enact legislation that exempted employers and health care services from liability. Democratic-controlled states were somewhat more likely to expand eligibility for workers’ compensation. Challenges to employers came from cases about accommodating remote work and leave. By enacting legislation that provided for pandemic accommodations, the federal government had created the opportunity for filing lawsuits against employers for failure. These lawsuits had little to do with the health care workers, warehouse workers, grocery workers, or construction workers, who continued showing up to workplaces during the pandemic. Any tsunami of litigation thus came not from liability cases, but from responses to the federal legislation itself. Neither a lawsuit for injury nor workers’ compensation is well designed to protect public health or to guard against community spread of an illness. The

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risk of a dangerous workplace under workers’ compensation schemes was that a household would lose a family member who had contributed wages to the virus. In the pandemic, however, people risked infecting others in their household. If concerns about infecting other people were not enough to provoke worry, then concerns for taxed health care workers and hospital beds could contribute to an additional sense of urgency about the need to mitigate the pandemic. Workers’ compensation does not cover irregular employment, which landscaping and construction work often entail; still less would it cover those who fell ill because a family member brought home a virus that was difficult to track. The federal government took on the major relief initiative for COVID-­19. Still, the states were sites for revising compensation. One strategy constricted the possibility of litigation as responsibility, warning of the threat to the economy of litigation, through which, in the persistent story of litigation for injury in the United States, individuals evade responsibility for their own problems. The other expanded bureaucratic categories. Individual responsibility for one’s well-­being in markets, and the priority of the economy, leads next to insurance companies; businesses had insurance for business interruption. Insurance companies had anticipated viral threats in the standard contracts, and their resistance to paying claims here led to real lawsuits, not the threat of lawsuits. But even these real cases largely failed to attract the interest of the general media, perhaps because discussions of insurance liability turn on contract terms and their history in court, all less susceptible to moralizing claims.

Losing Money, Lost Consumption Businesses anticipating problems after the 2003 SARS pandemic could write new rules into contracts, gain favorable rules from state legislatures, or work with existing rules to protect themselves from liability by gaining favorable rulings from courts. The pandemic saw court cases spill over into legislative debates over the rules about such court cases. When legislatures have written favorable rules, complaints under these rules can go to court. In turn, courts can rely on ordinary legal interpretation, and people will lose. They lose not necessarily because the courts are hostile, but because courts sometimes interpret words in contracts and words in statutes according to conventions. The meaning can be contested, but to contest a given meaning is expensive: it requires that the very people who are not currently getting paid go to the



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trouble of filing a complaint in court, pitting themselves against insurance companies and others who are probably well prepared for such complaints. Another notable category of pandemic-­ related complaints involves requests for refunds. Industries in which clients wanted refunds also retained some control over what to pay or what claims to allow, settling claims based in their interpretation of rules and what they needed to do to keep goodwill. Together, disputes over nonconsumer contracts, including, for example, claims that a business could not fulfill the terms of a contract due to the pandemic, and consumer requests, including for refunds for canceled events like cruises, airline tickets, or concerts, and requests for refunds from colleges, reported separately, added up to 903 of the cases that the CCT reported in September 2020 (see Table 3). Those legal complaints together add up to almost as many as the civil rights claims, which amounted to 927 complaints. Outside the requests for refunds from colleges, these cases received very little press. The New York Times reported twenty stories about colleges that mentioned lawsuits during the first six months. The cases about refunds or business contracts do not evoke the same emotional response that liability for injury does. Yet outside insurance claims and civil rights claims, they were the majority of the suits filed. Cruises were the first places that saw internationally visible clusters of infections outside China. From February 3, 2020, the cruise ship Diamond Princess was quarantined off the coast of Japan as the virus spread to seven hundred people (Mallapaty, 2020). The Grand Princess landed in Oakland, California, in early March to offload passengers for quarantine. With infections contained within one large ship owned by an even larger corporation, and with passengers who wielded the resources to complain, lawsuits for bad health practices appeared likely. Cruise ships had long been the sites of hosts of complaints, as they acted as almost law-­free zones. Employment required very long work hours from most of the staff, and sometimes passengers were injured. Staff and passengers have complained of sexual assault onboard ships. Legal strategies can limit responsibility. Although most cruises originate in the United States with Americans comprising the majority of the passengers, most cruise ships are registered in countries that have limited legal infrastructure for complaints. The ships are operated under “flags of convenience”; in other words, registering in Bermuda or the Cayman Islands is convenient for the cruise line and they need have little connection to the countries to register in them. The rules in these countries often do not support recovering for injuries, including sexual abuse or illnesses resulting from infectious viruses

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(Nanda, 2018). Labor conditions for workers, most of whom are recruited from the Philippines, are difficult. Limited legal regulation did little to help these workers even before the pandemic (Chin, 2008). What is more, complaints in many businesses, including the cruise industry, are settled via mandatory, private arbitration. Professional arbitrators employed by the industry settle disputes outside public processes. People can and do contest these mandatory arbitration agreements, but they have to have the resources, and their attempts don’t always work (U.S. House of Representatives Committee on the Judiciary, 2009). On the educational front, many colleges and universities sent students home in the early days of the pandemic, and they quickly preempted complaints by refunding fees paid for housing that people could no longer live in. Tuition refunds, however, proved more contentious. Families would claim that they had paid for in-­person, not online, education, and that universities that had moved online owed tuition refunds as well. Colleges did not all agree with this interpretation. The request for a tuition refund relies on education as an individual benefit, with the costs borne by the individuals, not as a public good, with the costs shared through taxes. Requests for refunds for college tuition are just like requests for refunds for airline or concert tickets, goods that are individually consumed and not available in the pandemic. From this individual vantage point, states would owe refunds to students in public universities who believed they were not receiving what they had paid for by paying tuition. These tuition refund requests came during a time when discontent about the expense and value of college was already widespread; state officials and parents increasingly understood education not as valuable for citizenry, but as an investment that must pay off for the individual investor (Brown, 2019: 42–43). Initial class action lawsuits against the University of North Carolina and the University of Central Florida (the latter including for housing) built on this assumption and were quickly followed by others (www​.classaction​ .org). Law firms created websites with information about tuition refunds and a simple form to fill out should a person reading the website have a complaint and want to talk to an attorney (see www​.CollegeRefund2020​.com). Complaints by disappointed consumers—either those who had paid for college or those who purchased travel they could not use—stand at a remove from the Senate’s and state legislatures’ arguments that waves of lawsuits by workers who continued to show up during the pandemic would cause more damage than the actual pandemic. Collapsing one type of complaint into the



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other conflates a financial loss with something graver—contracting an illness after going to work or experiencing the illness and death of relatives in congregate care. Complaints about consumer losses and about responsibility for catching COVID-­19 do share a common theme, however: that individual people are responsible for themselves, an ethic that pervades arguments about governing when the responsibility of businesses is at play (Brown, 2019). If education is contractual rather than a general public benefit or publicly funded for students, then people deserve a return if they believe the state violated its part of the contract. The fields with lawsuits, outside of the civil rights cases—complaints about not receiving a needed insurance payout and requests for refunds— could not be moralized as irresponsible individuals trying to win money that would close businesses. They could not be stated as issues of health versus keeping businesses open in support of the economy. Instead, lawsuits about insurance pitted insurance companies against businesses, and businesses were trying to gain payments on insurance policies that they believed they had purchased. The insurance companies had earlier written rules that they believed excluded closures as a result of viruses. Requests for refunds, another frequent matter for lawsuits, are difficult to frame as moral problems about individual responsibility. People had paid for cruises, concerts, or flights, and they wanted their money back. Who could argue with that? Insurance cases about business are not often seen or heard in arguments about governing and fairness in the United States, but perhaps they ought to be: insurance and insurance payouts govern disasters. Writing favorable rules about insurance or arbitration does not draw on inspiring language about freedom, which rapidly became the resonant language of partisan identity and polarization in the pandemic (Gandarian, Goodman and Pepinsky, 2022: 232–239). Instead, rules included how to interpret terms in contracts. People seldom read the many contracts they sign, nor do most people have any reason to know how lawyers and judges argue about interpreting language. When the rules are written to favor a group and courts then interpret these rules, the interpretations do not need to favor the group in every case in order for the rules to serve their purpose. Organizations just need to win more than they lose. In sum, the most common cases filed in the first six months of the pandemic were insurance cases, then refund cases, and then civil rights and civil liberties cases. The first two are difficult to moralize as individual responsibilities that legal officials had to enforce by refusing compensation—the

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moralizing of markets that has colored the movement to restrict liability for injuries. Insurance and refund cases concern individual costs and individual benefits in the pandemic and living up to the terms of contracts. They might not have activated the social identities that by 2020 were also party identities in the United States, but losses could easily contribute to the mistrust of institutions that public health writers argued undermined public health management. On the surface, insurance does not evoke partisan differences about access to voting, partisan differences about the primacy of religion, or inequality enacted in mass incarceration, all of which are part of polarization and limits on democracy in the United States. Long before the pandemic, though, forward-­thinking businesses anticipating extensive losses had set rules that protected them from liability. Legislatures responded during the pandemic, partly according to partisan control, in considering rules about liability, about workers’ compensation, and about interpreting insurance rules. Constitutional issues relied on dramatically different language than that of economic losses, either to industries or individuals. In lower-­level courts, constitutional claims contributed to the attempt to release people from prison and kept disputes about public health measures nagging at public officials. When cases did make it to the U.S. Supreme Court, they condensed partisan divisions without ever having to mention party, precisely because appealing to religion over public health was an appeal to the Republican Party. Reports about mistrust in science have assessed the contributions of the news media (Dube et al., 2020), of national political officials (Kapucu and Moynihan, 2021), of racism (Collins-­Dexter, 2020), and of mistrust surrounding the politics of funding science (McLaughlin et al., 2021). These analyses of the sources of mistrust do not describe competing authoritative frames, including law, losses in court, and images of law as requiring only individual responsibility, not public authority. In the midst of the pandemic, the authority of public health competed with the morality of markets and the enforcement of morality (Brown, 2019), and moralizing marks partisan identities (Gadarian, Goodman and Pepinsky, 2022: 21; 232–239). Litigation groups could bring court cases that would affirm law and its morality as a frame that competed with public health expertise. Litigators and courts set these authorities up as conflicting, thus amplifying divisions when social identities tracked political party differences. Supreme Court cases about a state election amid the pandemic also pitted constitutional requirements against public health requirements, rather than



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interpreting the two together. The pandemic thus amplified divisions; and divisions, in turn, hampered pandemic management. A disaster cascade, created partly through images of law, material losses enforced in law, and partisan division over symbolic meanings of law, unrolled. As liability legislation and business cases played out in the states, the Supreme Court would hear the constitutional claims that animated arguments about the courts.

CHAPTER 5

Government Authority, Civil Liberties, and Mass Incarceration

O

n March 13, 2020, just after the WHO declared a global pandemic, police shot and killed Breonna Taylor of Louisville, Kentucky, in her home. In May, police in Minneapolis, Minnesota, murdered George Floyd. Across the United States, people turned out in many cities to protest police violence under the banner Black Lives Matter. As masks to protect against the spread of COVID-­19 became common, they also became a site for messages. Advocates could then fit masks, a public health measure, into constitutionality and free speech. In July 2020, Stephanie Liss-­Riordan, a Massachusetts employment lawyer and candidate for elected office, filed a lawsuit against Whole Foods, claiming that the company had fired her client because it prohibited employees from wearing masks printed with the words “Black Lives Matter.” The complaint alleged that the company had allowed masks with other messages, choosing not to enforce its dress code. Liss-­Riordan took the claim to the Equal Employment Opportunity Commission, claiming that Whole Foods had not previously enforced its dress code and that enforcing it now was therefore discriminatory. Whole Foods claimed the employee—and others across the country—had been let go for other reasons, not for the messages on their masks (Hauser, 2020). Although this was an employment discrimination claim, the lawsuit implicitly appealed to free speech doctrine. The Constitution’s First Amendment governs what state officials can do (not private employers), and state actors cannot discriminate among viewpoints. In August 2020, the governor of Mississippi issued an order requiring masks in schools. In November 2020, the conservative litigation group Alliance Defending Freedom (ADF) filed a lawsuit in federal court on behalf of a



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Mississippi third grader who had worn a mask to school saying “Jesus Loves Me.” The school had forbidden masks with messages on them. In its case, ADF argued that the school was curbing the student’s rights to free expression. The ADF argued that the school district had allowed students to wear masks with other messages (Alliance Defending Freedom, 2021). This case does not appear in publicly available documents after December 2020. In 2021, the governor allowed school districts to choose whether to require masks at all (Royals, 2021). These two complaints about masks both reflect and reinforce the social polarization (to use Liliana Mason’s term) and identity in the United States, where statements about something other than party politics also signal differences in party political views (Mason, 2018). Differences with partisan meaning include differences in where people live, the messages they choose, and the lawyers they retain. One case is from Massachusetts, a state where Democrats had won the state legislature and the governorship. By summer 2020, filing a lawsuit about a mask with a Black Lives Matter message was likely to appeal to the Massachusetts electorate, aligning the employment claim with Liss-­Riordan’s run for office. The other is from Mississippi, where the governor and legislature have been Republicans. The ADF’s lawsuits about masks would be one small element of the extent to which, in 2021, masks themselves had become part of social polarization. The cases relied on existing national problems—about police violence, free speech, and religion—to frame them, so the cases meant more than what one employer or school district decided. Masking in the pandemic was a chance to extend existing divisions. Both cases required lawyers who had existing ways of understanding the problems, and who held key strategic positions in advocating for them. The pandemic had become an opportunity to highlight political disagreements, and court was one place to do it. As wearing a mask increasingly became a mark of partisanship, it was only a short time before the leading conservative legal group the Federalist Society would post a statement that all mask requirements in schools were unconstitutional because in and of themselves, masks were political statements (Drake, 2021). However easy these free speech stories are to tell, citizens sharing their messages on their masks do not capture the majority of constitutional challenges in the pandemic. However, when folded in with multiple challenges to closures and masks as public health measures, they represent one of the primary categories of constitutional challenges in the pandemic. As I argued in previous chapters, court cases and their surrounding disputes are ways of pursuing partisan priorities, some salient to publics and

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others less so. Limiting legal liability in disasters continues policies that have long formed a priority for ALEC: caps on liability for injuries. In contrast, the disputes between insurance companies and business owners do not fit readily into a partisan polarized frame, were not discussed by interest organizations or national political officials, and therefore received limited general news coverage. Companies wrote insurance policies that limited their responsibility, and courts have often interpreted terms in their favor; these individual claims are not the stuff of electoral mobilization. In the first six months of the pandemic, constitutional claims came in two kinds, each mobilized by interest organizations. Disputes about masks and closures, linked to free speech, property rights, and the free exercise of religion, were just the kind of social issues that parties could use to mobilize voters, whether or not a school’s rules about messages on masks affected many people’s lives. The other main constitutional claims concerned people who were much less valued: the incarcerated and detained, who were at great risk in crowded conditions. Caring for the detained and incarcerated, or even releasing some of them, does not have a clear political constituency the way contests over closures did. The COVID-­19 pandemic invited judges and justices to revisit a case about the constitutionality of a vaccine mandate from the early twentieth century. In the late nineteenth and early twentieth centuries, the United States experienced waves of smallpox outbreaks (Willrich, 2011: 10–11). Vaccines were mandatory in many states, but state officials did not apply these mandates evenly. The military imposed them in Puerto Rico and the Philippines, and health officials and employers joined to impose them on factory floors (Willrich, 2011: 216– 34). In the early twentieth century, local officials prosecuted resisters (Willrich, 2011). Resistance generated a U.S. Supreme Court case, which then reappeared in litigation about COVID-­19 more than one hundred years later. Cases in any field that remain most visible over the years are those that were decided by the Supreme Court, not the prosecutions in lower courts. Since cases remain law over time, whether or not courts have needed to rely on them, that older case was still relevant in 2020 and 2021. Cases concerning the smallpox vaccine mandates had worked their way through state courts and some lower federal courts. The courts had reasoned that states had long relied on quarantines to manage public health. Judges disagreed about whether a vaccine was a more serious imposition than a quarantine. One was a needle prick but an incursion into a body. The other left people untouched but confined. Whatever the reasoning, though, judges largely allowed vaccine mandates under the state’s “police power,” to protect public health. At that time, public health officials



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recognized that vaccines could harm some more vulnerable people, leading judges to conclude that in some circumstances, but not in the smallpox epidemic for the plaintiffs they saw, refusing the vaccine could be warranted. Mistrust about vaccines left a trace in the Supreme Court in 1905, when Pastor Henning Jacobson of Cambridge, Massachusetts, found leading civil liberties lawyers to pursue his vaccine challenge to the Supreme Court after he had lost in state courts. In Jacobson v. Massachusetts (1905), the Supreme Court held that states could require vaccines when there was a “present danger,” language that soon became familiar in iconic early twentieth-­century free speech cases (Willrich, 2011: 313–14). Justice John Marshall Harlan, writing for the Court, noted that governments could quarantine people and could order them to serve in the military. If governments could restrict people that much, they could impose a vaccine requirement. Justice Harlan allowed that there could be some circumstances when mandating a vaccine was “arbitrary or capricious,” or a threat to someone’s health. Then the courts could prohibit mandatory vaccines. Most of the time, and in the case before them, though, mandatory vaccines were well within the state’s police power, or the inherent power to regulate for the common good. Justices David J. Brewer and Rufus W. Peckham dissented but did not write an opinion. For the majority, though, a vaccine was less restrictive than a quarantine, and public health took priority over Jacobson’s claim to individual liberty, which was interpreted as a fundamental right through the “due process” clause of the Fourteenth Amendment (Jacobson v. Massachusetts, 1905). State surveillance of those who mistrusted vaccines extended into World War I and the 1918 flu epidemic. FBI director J. Edgar Hoover included ­people who were opposed to vaccinations in his surveillance of Americans for sedition (Willrich, 2011: 333). The national government did not cancel public celebrations of the war effort, although gatherings were perfect for spreading the flu. Gatherings supported the war, and talking about death from the flu did not. Continuing rallies and ignoring the flu joined surveillance of the mail and prosecutions for sedition, chilling political dissent. Official suppression tangled dissent about the war with public fear of the flu (Barry, 2004). Mistrust in governing, not least because of the president’s silence about the flu and his administration’s entangling of the issue with sedition, were key failures in the 1918 pandemic (Barry, 2004), just as they were in the COVID-­19 pandemic. In September 2020, Attorney General William Barr suggested that sedition charges could be pursued against those who protested racial inequality during the pandemic (Benner, 2020; see also LaFraniere, 2020).

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During the COVID-­19 pandemic, constitutional challenges in court have taken place in and out of the public view. People wearing masks with messages are very much in public view—whether walking through your local grocery store or appearing in photographs on websites. Claiming that a mask is free speech requires an audience; masks, with or without messages, are public statements. Yet other constitutional problems take place out of view. People who were most threatened with serious illness and death resided in congregate settings or labored in unsafe workplaces such as meatpacking plants, all out of public view. Also out of view was the rapid spread of the virus through thousands of people housed in prisons and jails in the United States, including asylum seekers or immigrants and those convicted of crimes. These and other people who were most at risk lived in concrete facilities behind fences, unable to consent to photos. They could be easy to forget. Indeed, they were doubly out of view: even among the nonincarcerated, the dying had only rarely been depicted; journalists struggled to gain consent and to film in hospitals. The sympathetic stories that invited telling in the mask cases were not initially as available for people dying from COVID-­19. Interest organizations did, however, challenge incarceration during the COVID-­19 pandemic; and the additional threat of death from COVID-­19 could allow lawyers to raise anew the unconstitutionality of incarceration, which had long been a matter of civil rights litigation. Many complaints would come in state courts and involve negotiation with state, not federal, officials because more people are incarcerated in state facilities. After the insurance cases, civil rights cases predominated in early case filings during COVID-­19, according to the Hunton Andrews Kurth COVID-­19 Complaint Tracker (Hunton Andrews Kurth, 2020). They showed up in state and federal courts. Many of these cases concern state restrictions on the size of gatherings. The governing stakes are evident in who brings the closure cases: plaintiffs include businesses and Christian conservative organizations. Cases about the need to open (claiming that closure orders lay beyond a governor’s constitutional powers) resonated with leading Republican senators’ claims that preserving the economy required opening, and opening required limiting liability for illness. Other cases included claims against detaining and imprisoning people in conditions that were likely to spread COVID-­19 rapidly during the pandemic. Civil rights claims have a different dynamic than the monetary claims for the disaster-­related losses examined in the last chapter. Settlements can meet demands for money, even if the settlement amount is not for all that



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someone lost. These losses can range from the recreational, such as losing a flight or concert ticket, to the existential, such as having no insurance for a small business. Rules can be written to favor the businesses that anticipated losses, and interpretations of contract terms can remain ambiguous in state law. Money can also be divided; wins and losses need not be 100 percent. Most of the dismissed, ongoing, and settled cases, though, were about money and individually consumed goods. Insurance companies and states could and did draft rules, but the insurance companies’ rules did not mobilize public partisan argument. For individuals claiming compensation, these lawsuits claimed material benefits. They could shade into the principled partisan divisions that many civil rights claims mobilized, but they did not. ALEC’s work on limiting liability, for example, together with Senator McConnell’s argument that limiting liability was critical to national well-­being, demonstrated that financial concerns could follow partisan lines. Democratic and Republican party leadership had long taken different sides on whether liability for injuries needed to be curbed, though the argument that it did need some form of curbing because businesses were being unfairly sued had edged into common sense over the years (Hans, 2000). Once the liability issue had moved to state legislatures, it was less visible in public debate than when Senators McConnell and Cornyn derided imagined claims about businesses, customers, and employees. Owning a business and filing a complaint because an insurance company would not pay a claim was experienced individually, not as a partisan conflict over constitutional principles. The Senate leadership did not publicly deride businesses that wanted to claim money from their insurance. In contrast, bitter disputes over masks as a principled issue about freedom proved that public health measures could follow the social divisions that captured political identity in 2020 and 2021. Interest groups continued to litigate issues that could and did inflame divisions about mass incarceration, about elections, and about religion. These cases need not be pursued to outcomes in the U.S. Supreme Court to be useful to litigation groups announcing their work.

Interest Group Litigation: Ideas, Process, Outcomes Next I contrast conservative litigation about closures and the free exercise of religion to the U.S. Supreme Court and lower court lawsuits, and the attempt to decarcerate people in the pandemic. Each project—limiting mass incarceration and elevating the importance of religion in American life—have long had

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interest groups working on them. Both require telling stories that are more complex than the brief quotations from the Supreme Court that the news favors when describing courts and law. They part ways, though, over what implementation requires. Winning a free exercise of religion case would allow places of worship to open if they wished and allow people to attend in-­person worship. No one would have to do anything against any other concerns they had. Decarcerating people, in contrast, required governors, prison administrators, and public health officials to work together for a constituency that could not vote—and on a controversial issue that could mobilize voters’ anger.

Conservative Claims about Stay-­at-­Home Orders and Restricting Gatherings

On April 21, 2020, the Republican majority in the Wisconsin State Legislature challenged the governor’s stay-­at-­home order in court. Legislative representatives argued before the state supreme court that the governor did not have the authority to issue the order. They won on May 13 (Wisconsin Legislature v. Palm, 2020). Just the month before, Wisconsin had also been to the U.S. Supreme Court to contest the governor’s efforts to extend absentee voting in a special election (discussed in Chapter 2). Courtesy of those who litigated and party differences on restricting voting and the primacy of religious exercise, election administration and the free exercise of religion were intertwined. Political conflict between government officials, handled rapidly in courts, did little to unite people in the United States across partisan identities. Closure orders quickly became intertwined with party politics. As employment collapsed, businesses sued over stay-­at-­home orders, citing their lost revenue. State and local officials sued about the authority to issue orders. Governors disagreed with state legislatures, and state legislatures disagreed with local governments. By April 2020, all but ten states had at least partially exempted religious gatherings from closure orders. Exemptions could vary and might be partial. For example, some states allowed indoor gatherings but limited the numbers of people in indoor worship services. Exemptions overlapped with party control. The states that did not exempt religious worship from closures included five of the eleven states where Democrats controlled both the legislature and governor’s office after the 2018 elections, and four of the thirteen states where the legislatures and governorship were divided between Republicans and Democrats. Early in the pandemic, closure orders



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that did not exempt places of worship went into effect in only one of the twenty-­two states where the Republican Party controlled the governorship and both houses of state legislatures (Villa, 2020). Moreover, closing in person collective worship offered an opportunity to push forward legal claims about encroachment on the free exercise of religion. Religion is among the multiple factors linking social and partisan identity (Mason, 2018: 33–35), and for many people, a court case about religious exemptions could well mean that one’s party had won. That same sense of a partisan victory would also serve in the business cases challenging closures as unconstitutional, since early in the pandemic these cases were brought against Democratic governors. As of September 28, 2020, the Coronavirus Case Tracker had reported 321 cases challenging state closures (CCT, n.d.). Three of the cases about orders restricting in person worship made their way to the U.S. Supreme Court in 2020. All three originated in states where the Democratic Party controlled the legislature and the governor’s office: California, Nevada, and New York. Conservative litigation had its strongest representative in the ADF, which took on the elementary school student’s mask messaging case in the pandemic and had long established itself as a powerful litigation force. As we saw in Chapter 2, the ADF is a leading participant in the conservative legal movement that formed in the 1990s. Just two years before the pandemic, ADF had won the Masterpiece Cakeshop case, which the Supreme Court decided in 2018. The owner of a Colorado cake shop, Jack Phillips, had refused to make a wedding cake for a gay couple to celebrate their marriage. He claimed that celebrating their marriage violated his religious beliefs, and therefore his right to the free exercise of his religion. A state law required businesses not to discriminate on the basis of sexual orientation, and Phillips lost on that basis until his case reached the Supreme Court. A majority of the Court (seven to two) held that the Colorado Commission had wrongly held against him after expressing hostility to his religious beliefs, rather than treating religion neutrally when deciding what the law required (Masterpiece Cakeshop v. Colorado Civil Rights Commission, 2018). The ADF had also argued for Phillips’s free speech rights, a ground for complaints the ADF combines with a right to free exercise of religion. Facts in court cases make complaints look discrete and separable from every other complaint. How could a complaint about cake baking be connected to a pandemic? But when groups litigate strategically, and the ADF certainly does, they pursue principles that are instantiated in individual cases.

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The ADF entered the pandemic with expertise, money, and clear commitments. Its pursuit to expand the free exercise of religion aligned well with cases that went to the Supreme Court. The federal courts had a long history of deciding cases concerning how the states could regulate religious exercise. By 2020, Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018) opened the possibility of challenging other decisions by states for unconstitutional hostility to religion. If Supreme Court decisions were authoritative and had positive spillovers in a justice cascade, then in the pandemic, states could exempt some religious practices or regulate them only as public health demanded and people would accept it. However, in a divided polity where organizations had the resources to sue, accommodations in the states were still an opportunity for a lawsuit. Religious freedom cases challenged limits on the size of indoor gatherings, depicting these restrictions as limiting the free exercise of religion. Some cases compared the treatment of churches versus businesses under these orders. In the spring and summer of 2020, the U.S. Supreme Court decided cases from California (South Bay United Pentecostal Church v. Newsom, 2020) and Nevada (Calvary Chapel v. Sisolak, 2020). The ADF was a presence even where its lawyers did not lead in a case. The lawyers in the California case were private attorneys and the Freedom of Conscience Defense Fund, which its website describes as founded in 2012 by Charles LiMandri, one of the private attorneys also listed as an attorney in the case (Freedom of Conscience Defense Fund, n.d.). LiMandri claims awards from the ADF. The lawyers in Nevada’s case were from the ADF, which also brought other cases in Kansas and Washington, as well as the case against the mask requirement in Mississippi mentioned earlier. These cases were all part of the commitment held by lawyers leading the conservative movement to taking many cases, whether or not they reach an appellate court—and even whether or not they lose (Southworth, 2008). In the two cases, the justices disagreed about how much religious gatherings were similar to businesses, and about states’ authority to order public health measures. By five to four in each case, the Court dismissed the requests for injunctions against the governor’s health orders. California’s and Nevada’s orders differed in how much they restricted businesses where people gathered together, and how that compared to restrictions on in-­person religious worship. The trust in public health managers that scholars called for does not invite judges to scrutinize differences in state policies, but judging in a federal system with different state policies where litigators can bring cases does.



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In dissenting opinions, justices contended with Jacobson v. Massachusetts (1905), the compulsory vaccination case from the smallpox outbreak in the early twentieth century. The case was directly relevant since it had upheld mandatory vaccines as a public health measure during the early twentieth-­ century epidemic. Because courts reason by relying on previously decided cases, the earlier decision was relevant, even if only to dismiss it. Justices can “distinguish” cases, or describe why the case before them is different from a previous one. Decisions regularly leave some flexibility for the future. In Jacobson Justice Harlan had noted that it could be possible courts would have to strike down health measures if they were arbitrary or capricious or truly put a plaintiff ’s health at risk, as Jacobson claimed a vaccine mandate applied to everyone did (Jacobson v. Massachusetts, 1905). Also, courts’ approach to interpreting constitutional rights had changed in the intervening years. More recent cases about regulating the exercise of religion (not the claim to personal liberty central to Jacobson’s claim) featured prominently in the dissenting justices’ discussion (Church of Lukumi Babalu Aye v. City of Hialeah, 1993), which held that targeting religious practice for unfavorable treatment was unconstitutional. Opinions were brief, as they are when the Court decides on a short timeline without granting a full hearing. Justices Samuel Alito, Neil Gorsuch, and Brett Kavanaugh each wrote separate dissenting opinions in the Nevada case. Nevada had partial exemptions for places of worship and limited the numbers of people who could gather. Nevada’s exemptions for places of worship were less generous than California’s had been. The dissenting justices argued that in Nevada, casinos were allowed to open with greater numbers than people in houses of worship, and casinos could not be less of a health risk than religious gatherings (Calvary Chapel v. Sisolak, 2020, dissents). They explained away Jacobson v. Massachusetts (1905) by saying that a vaccine did not intrude on people’s lives as much as a stay-­at-­home order, which was the opposite of how multiple courts had described vaccines and quarantines in the early twentieth century (Willrich, 2011: 308–9). The dissenting justices placed religious groups in the category of a wrongly burdened minority comprising people who could not worship as they chose. Regardless of the outcome, these cases allowed the Christian conservatives who brought the cases to portray practices against health advice as a matter of constitutional principle, and the government policies as discriminatory. The third case came after the Senate confirmed the third justice nominated by President Trump to the U.S. Supreme Court in October: Justice

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Amy Coney Barrett, a conservative Christian. Justice Barrett had long been favored by the Federalist Society to be appointed to the Supreme Court. She served on the federal court of appeals for three years before her appointment to the nation’s highest court, and she had decided very few cases that would allow people to discern what she would do in cases that are a high priority for conservatives in the United States, both about religion and about government regulation. The president nominated her on September 26, 2020, just eight days after Justice Ginsburg died and a short six weeks before the presidential election. Commentators scrambled to find whether any president had nominated a justice so close to an election; no other president had. Critics also noted that Senator McConnell’s successful shepherding of Amy Coney Barrett’s appointment belied the reasons he gave for not considering an appointment in the last year of President Obama’s second term: that people should be able to vote when a president would have a momentous appointment to make to the Supreme Court. The Senate affirmed Judge Amy Coney Barrett’s appointment to the Supreme Court on October 27, 2021, with the vote divided along party lines: fifty-­two to forty-­eight. Her appointment process was very fast. As a result of the timelines that Senator McConnell managed, the forty-­fifth president appointed three justices to the Supreme Court rather than the one that would have been expected had the processes followed ordinary timelines. The particular appointments of Justice Gorsuch and Justice Barrett are instances of the years-­long work of the Federalist Society in developing conservative legal ideas and lists for judicial appointments (as discussed in Chapter 2), which were bearing fruit (Hollis-­Brusky and Parry, 2021: 122, 134–35). Appointments and the expertise and funding of conservative religious litigators expanded the pandemic and actors in it to judges, not just public health officials. These specific institutions linked governing the pandemic to constitutional retrogression. As theorists of authoritarianism Steven Levitsky and Daniel Ziblatt argue, democracy in the United States requires forbearance, or not doing the most that one can do under the rules to control institutions (Levitsky and Ziblatt, 2018: 8–9, 106–111). They name a lack of forbearance “constitutional hardball,”1 and that name captures the judicial appointments process that shepherded Justices Gorsuch and Barrett onto the Court. The administration’s strategy of appointing and confirming quickly from a list of judges that the Federalist Society had developed and approved extended Republican Party control of the Supreme Court (Hollis-­Brusky and Parry, 2021). Appointing so soon after Justice Ginsburg’s death and so close to an election did not violate



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any rules. Members of the U.S. Supreme Court have lifetime appointments, and many have served until they are in their eighties, as Justice Ginsburg had. Therefore, appointing three justices to join the three appointed by earlier Republican presidents implied long-­term conservative control of the Supreme Court. Whether or not every justice would decide in every case in accordance with what Republican Party leadership wanted, the administration had gained a clear victory by appointing justices, one it could celebrate to voters. This victory could prove especially fruitful because the conservative legal movement had long argued that conservative justices would overturn cases protecting reproductive rights, which were the most high-­profile and most divisive cases the justices were likely to hear (Ziegler, 2022). The appointees were likely to stay on the Court long after the administration left, cementing the reach of an electoral coalition long after it has exited the political stage. On November 12, 2020, two weeks after Justice Barrett’s appointment, the Roman Catholic Diocese of Brooklyn, New York and Agudath Israel of America petitioned the Supreme Court to enjoin, or stop, Governor Cuomo’s restrictions on indoor gatherings during the pandemic as applied to indoor religions gatherings. Courts issue injunctions when “irreparable harm” will result from allowing a rule to continue in force while a full case works its way through courts. Other criteria include the likelihood of succeeding when a court fully hears and decides a case, and the public interest. The Court ruled on the petition on November 25, less than two weeks after the diocese had filed it; the speed resulted from the emergency the petition claimed existed. Participants marked this case’s significance in national politics. Not only was the Supreme Court taking it, but the lawyers arguing the case were a team of litigators from a leading corporate firm, Gibson Dunn and Crutcher, which had an active constitutional and appellate group. The case came out of the state of New York, where Cuomo had gained national political celebrity status with nightly news conferences on managing the pandemic. New York had a system of indicators for when establishments would need to close, and the designers of this plan had meant to accommodate religious practice: when the case went to the Supreme Court, places of worship in New York had already been rezoned to allow greater in-­person worship, given the rate of outbreaks. When people want to ask the Court to decide according to their preferred position, they sometimes file amicus curiae, or friend of the court, briefs. Within a week of the court filing, a few organizations had filed motions asking the Court to accept their amicus briefs. The motions were few, given the short timeline in an application for an injunction. They

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included two briefs from organizations describing themselves as advocating for religious liberty; they were linked to the leading conservative advocacy organizations in the United States. The Center for Constitutional Jurisprudence filed a motion to submit a brief; John Eastman is listed as the lead attorney. Eastman later spoke at the January 6, 2021, rally and advocated against certifying the presidential election (Field, 2021). The motion represents the Center as the “public interest law arm” of the Claremont Institute (Brief of the Center for Constitutional Jurisprudence, 2020: 2), an intellectual home for conservative advocacy in the United States, and where Eastman was a fellow (Field, 2021). The First Liberty Institute also applied. The State Policy Network, the conservative group that coordinates policy initiatives across the states, lists the First Liberty Institute as an associate (SPN, n.d.). In sum, advocates against the restrictions on in-­person worship in the name of public health were allied with leading conservative organizations in the United States, more often noted for their work in state legislatures and public argument (Hertel-­Fernandez, 2019; Field, 2021). The People United for Separation of Church and State and the American Medical Association (AMA) filed amicus briefs supporting the health order in New York as consistent with the free exercise of religion and valuable for public health (Roman Catholic Diocese of Brooklyn, NY v. Cuomo, 2020). The AMA would claim health expertise; the rest are organizations focused on religious precepts, which are issues that divide voters by party. Sociologist Nicholas Christakis’s argument that after the pandemic people would believe experts more was not borne out throughout governance decisions during the pandemic (Christakis, 2020); the amicus briefs put that problem into sharp relief in court. These cases, turning as they do on heated and divisive issues, reflected and contributed to polarized politics about managing the pandemic. A court case narrows a problem to two sides, in this case for restrictions on gatherings or for the free exercise of religion, with little room for nuance or compromise. People can pick a side, and they will have members of the U.S. Supreme Court that they can agree with. The Court issued its decision on November 25, 2020. The per curiam decision in Roman Catholic Diocese of Brooklyn, NY v. Cuomo (2020) was five to four, like the other closure cases from the spring and summer. This time, though, the newly appointed Justice Barrett joined four other justices to overturn the governor’s order. Like other recent emergency order cases, Roman Catholic Diocese of Brooklyn v. Cuomo included multiple opinions. In addition to the per curiam decision, the opinion included statements by



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Justices Gorsuch and Kavanaugh, who had been appointed by the Trump administration, and dissenting opinions by Chief Justice John Roberts and Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor. The Court’s seven-­page per curiam opinion adopted a mild tone while still pressing the urgency of the constitutional claim: “Members of this Court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area. But even in a pandemic, the Constitution cannot be put away and forgotten” (Roman Catholic Diocese of Brooklyn, NY v. Cuomo, 2020: 5).Opinions from individual justices were more passionate, focusing on the free exercise of religion and how the public health orders encroached on it. Justice Gorsuch, who was appointed shortly after President Trump assumed office in 2017, opened his opinion with a line readily quoted in a conservative columnist’s New York Times editorial, which in turn was widely reprinted (Stephens, 2020): “Government is not free to disregard the First Amendment in times of crisis.” That line does not acknowledge what New York did to accommodate religious practice. Accommodations and adjustments can make a substantial difference on the ground and may reflect spillovers from earlier court cases—but they do not make for compelling reading when partisan politics is also a politics of religion. Dissenting justices described the complex New York order as accommodating religious worship (Roman Catholic Diocese v. Cuomo, 2020: Justices Breyer, Sotomayor and Kagan). It included benchmarks about outbreaks and in-­person worship. When outbreak levels were low enough, houses of worship could open for gatherings at limited capacity. Complex, nuanced orders are difficult to evaluate with one-­line endorsements of principles, whether for protecting public health or protecting an expanded free exercise of religion. The Roman Catholic Diocese and Agudath Israel both argued they had seen no outbreaks and they had been following public health guidance about masking and distance while holding services. By the time of the decision, people were allowed to gather even under the governor’s order, because outbreaks had declined. The majority argued that the governor of New York could reimpose the closure at any moment, so the Court still needed to decide the case. The resulting decision paved the way for other decisions, also deciding emergency petitions quickly, without full argument and without the time for the multiple amicus briefs that signal alliances for the Court. In spring 2021, the Supreme Court brought Roman Catholic Diocese of Brooklyn to California, stopping the state government from enforcing Governor Newsom’s orders concerning in-­person worship (Hollis-­Brusky and Parry, 2021). These cases were

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also decided quickly, by six to three with the three recent appointees deciding together and with short, per curiam opinions followed by multiple, more extensive opinions (South Bay United Pentecostal Church v. Newsom [South Bay II], 2020, decided February 5, 2021; Tandon v. Newsom, decided April 9, 2021).2 To win on what the government could not do did not mean people would gather indoors to worship. Places of worship could still choose not to hold in-­person services, and those who did hold them could not force their parishioners to attend. People could choose not to go. Even before the pandemic, the numbers of people attending in-­person worship had been declining in the United States (Gallup, 2019). The case thus set up a conflict grounded in principles that had little to do with whether most people expressed their preferences by their absence or attendance via Zoom. Supreme Court decisions gain news coverage. Therefore, media ranging from the news platform Vox (Millhiser, 2020), the New York press, and national television news to the Federalist Society (“Public Health or Secular Convenience”) could announce the primacy of the free exercise of religion via justices affirming a right to in-­person religious worship in a pandemic. The principle could disseminate widely whether or not people’s practices changed. Every case could carry multiple meanings. It could be important for its own sake in the pandemic. It could signal victories for religious conservative judicial appointments. It could signal what might happen in future, dissimilar cases that worked with related principles. If Justice Barrett and others appointed with the endorsement of Christian conservatives ruled as expected, then the free exercise of religion would—and did—take priority, as justices assessed the evidence supporting public health decisions. Bringing such a case forward, especially in states led by Democrats, allowed conservative Christian organizations to tell their story about religion under siege from a highly visible platform: they claimed religious people had unjustly lost these rights to dominant liberal majorities in their states. Only courts could resolve the problem. And if they lost the case, they still won: losing cases concerning religious gatherings could contribute to the broader wariness about governmental decision making as fragmented, partisan, oppressive, unjustified on health grounds, and unclear. Officials do not control who brings a case, so governing by lawsuit fragments public decision making well beyond any official’s control. State Republican parties, private law firms, and other interest organizations joined the well-­established ADF in putting forward just such lawsuits. Long before the pandemic, the pieces were in place for contesting the primacy of religion, administrative authority, and public health in courts and the Constitution.



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The last case about closing places of worship aligned with the preferences of Republicans, who were more likely to identify as religious than Democrats, and more likely to report attending church (Mason, 2018: 35–37). Together, the three free exercise of religion cases signaled conservatives’ success in appointing justices to the Supreme Court who would interpret the free exercise of religion clause of the Constitution to favor religion, even in a pandemic when information was uncertain and infections threatened to rise. In the first two cases, the Supreme Court had upheld the order by five to four. In the last one, after Justice Barrett had joined the Court, the justices overturned the closure order by five to four. Whether or not people would go to places of worship in person during the pandemic, and in what numbers, was thus beside the point. The decision signaled a Republican political victory in appointing religious conservative justices to the U.S. Supreme Court. Claiming disenfranchised minority status aligned the religious institutions and Christian conservatives with the liberal democratic constitutional story: that courts were meant to extend constitutional rights. Those who pressed for protection of the free exercise of religion also challenged other measures that state governments took. The CDC issued an eviction moratorium in September 2020, but its effectiveness would vary depending on state protections and interpretations in lower courts. Constitutional claims about the moratorium, though, could go forward regardless of the practices around the country. The claim that a moratorium violated property rights protected by the Constitution fit well with the commitments of the conservative legal movement. Litigators included the conservative Pacific Legal Foundation and the New Civil Liberties Alliance (NCLA),3 both associates of the conservative State Policy Network, along with the National Apartment Association, all litigated the moratorium (see, e.g., Brown v. Azar, 2020; Chambless Enterprises v. Redfield, 2020; Terkel v. CDC, 2021). Attorneys from the law firm Gibson, Dunn and Crutcher who took the New York case challenging restrictions on religious gatherings in 2020 also represented landlords challenging the New York eviction moratorium, which was first enacted in December 2020 (Chrysafis v. Marks, 2021). On June 3, 2021, the Alabama Association of Realtors filed an emergency application with the Supreme Court asking it to stop the eviction moratorium, which was cast in terms of what the lower court orders entailed. On June 29, by a five-­to-­ four decision, the Supreme Court allowed the CDC’s moratorium to remain. Justice Kavanaugh wrote that he voted to allow it only because it was set to expire, a statement that implied the moratorium would lose a vote the next time the Court heard it.

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When the CDC extended the moratorium in July 2021, the Biden administration quickly found itself before the Supreme Court. On August 26, 2021, by a six-to-three vote, the Supreme Court held that the eviction moratorium was illegal and beyond the reach of the CDC. Justice Gorsuch joined the other two justices appointed by the Trump administration, as well as Justices Clarence Thomas and Samuel Alito, to hold that the CDC did not have the authority to issue an eviction moratorium (Alabama Association of Realtors v. Department of Health and Human Services, 2021). Under emergency applications, the Supreme Court had advanced restrictions on accommodating public health measures during a pandemic for voting, governors’ power over sheltering, and evictions. For good measure, since legal reasoning relies on citing cases that previous courts have decided, each case had implications for the future, concerning free exercise of religion, voting, and administrative authority and expertise well beyond the pandemic. Each had been priorities for leading advocates in the conservative legal movement (Hollis-Brusky and Parry, 2021). Cases that end in the Supreme Court with decisions that govern the entire United States offer a satisfying clarity that is unavailable to decisions brought separately across multiple states and, for court cases, multiple court jurisdictions. The Supreme Court had held that the free exercise of religion was important enough that state officials had to revise their restrictions on public gatherings: the public health decisions they had made were not sufficiently justified. The ease of stating that principle contrasts with stating any one inspiring principle or one clear process about all the fifty different states, Washington, D.C., and Puerto Rico as they worked through multiple contested problems in the pandemic. Insurance and liability or opportunistic maneuvering about voting access brought in legislators, governors, courts, and administrative officials, often in multiple iterations. Even in voting, which is critical to democracy, ALEC had long made progress in Republican-­led states by offering model legislation that any legislature could use, and less by mobilizing a broad public (Hertel-­Fernandez, 2019). Anyone not immediately affected or not litigating could be forgiven if decisions about insurance fade rapidly from awareness, however important ALEC is or however much the business press said the conflict over insurance was the biggest issue for the insurance industry in decades. A field lacking one outcome about constitutionality from the highest court in the land would be more difficult to follow, varying across the states. Yet as



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with liability and insurance politics, an issue that is difficult to follow could also be a high-­stakes issue both for individuals and businesses. Decarceration in the pandemic, which is a constitutional issue and a very high-­stakes one, also was a long process bringing in governors, legislatures, prison officials, public health experts, and courts to varying degrees across the states. Tracking what happened, therefore, requires turning to a closer look at one place. While litigators were racking up cases in accord with principles for the conservative legal movement, public defense attorneys, legal aid groups, and liberal civil rights advocacy organizations tried to get people released from prison and immigration detention. Both were settings for spreading the virus widely. Defense attorneys and interest organizations had long experience in litigating for incarcerated people. The route, though, was unlikely to end in the U.S. Supreme Court. Instead, releasing people would require pressing political officials while court cases were in process. Furthermore, victories did not have a constituency that voted in large numbers, as free exercise cases did. Conservative activists’ victories in court could affirm that the courts were critical to conservative success, which was already a basis for appealing to the electorate. Releasing people from detention did not promise a similar affirmation for elected officials.

Mass Incarceration and Decarceration

Prisons hosted some of the worst COVID-­19 outbreaks (Aviram, 2021a, 2021c). Accordingly, the pandemic provided a new opportunity for activists to try to release people from prison; decarceration was a long-­term project for multiple civil liberties groups and one that some conservative interest organizations had also begun to claim (Dagan and Teles, 2016). Once the pandemic struck, litigators brought cases in state and federal court under state and federal constitutional provisions. Ensuring that court decisions were meaningful in these instances differed from the dynamics of the free exercise cases. When the Supreme Court announced principles about the free exercise of religion, the principle itself was the victory. It did not require multiple institutions that had good reason to be reluctant to cooperate to implement the decision, and to do so in the face of countervailing political pressures. However, decarceration did. Mass incarceration is a leading edge of coercive state authority and racial inequality in the United States, which incarcerates a greater proportion of its

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population than any other Western industrialized state (Gottschalk, 2008). Mass incarceration is fragmented across localities, states, and the federal government (Rubin and Phelps, 2017). Many more people are incarcerated in the states than in federal prison, so initiatives to limit incarceration need to happen in the states if they are to make substantial progress. Both parties have expanded mass incarceration. Neither party has found stopping mass incarceration a winning issue on which to campaign (Grumbach, 2022: 59–66). Some conservatives have turned against mass incarceration in principle as expensive and wasteful government spending and counter to conservative religious commitments to redemption (Dagan and Teles, 2016; Gottschalk, 2013: 255; Petersilia, 2016). Litigation is among the strategies organizations rely on to build pressure to release people. Actually getting people out of prison is not the same as agreeing that mass incarceration is wrong. Cases to get people released from incarceration were among the first to be filed. The CCT lists the first pandemic-­related complaint against the New York City Department of Corrections as filed on March 19, 2020, just a week after the WHO declared a worldwide pandemic. Many of the first detention cases reported in the HAK complaint tracker come from New York. Cynthia Brann, the director of corrections for New York City, found herself named in 422 claims in the first six months. Other cities and counties around the country also were named in cases requesting release. The ACLU, public defenders, and legal aid societies sued to gain release of prisoners, detained asylum seekers, and immigrants. Some cases were pro se (individuals bringing cases for themselves). With COVID-­19 putting pressure on the U.S. incarceration system, these cases raised the possibility of obtaining release for some people, even if they would not lead to widespread decarceration. The courts were not alone in hearing advocates ask for release of prisoners. Governors and state legislatures could see the risks of COVID-­19 spreading in prisons, jail, and immigrant detention centers, and they could request release. New York’s Governor Cuomo promised in March to release 1,100 prisoners (Lieberman and Hardy, 2020). However, electoral pressures meant there would be no easy political wins in releasing incarcerated people. The Prison Policy Initiative, a think tank that reports on the harm from mass incarceration in the United States, gathered data about prisoner releases during COVID-­19 and reported that the numbers of actual releases across the country were low. By June 8, 2020, New York State reported having released 898 prisoners, despite Governor Cuomo’s pledge in March. Most people who were released were very close to their release dates. Prisons could



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release the elderly, who were most at risk for serious illness in prison and least likely to commit more crimes, but they did not. If they had been incarcerated for a long time, they were likely to have been incarcerated for serious offenses (Aviram, 2021c; Prison Policy Initiative, n.d.), inviting public outcry on release (Aviram, 2021a). When judges heard petitions for release, they avoided constitutional claims and were more likely to order people who were in immigration detention released, not those who were incarcerated (Garrett and Kovarsky, 2021). Next I draw together the timing and the actors surrounding decarceration in California during the pandemic. To understand the complexity and the role courts played means paying attention to context and following a problem across institutions and over time, rather than focusing only on decisions from final courts of appeal. The process is local: the context for California differs from that in Mississippi or Texas, although in all three states people suffered from coronavirus infections and experienced contests over public health measures, incarceration, and climate-­related disasters (including the pandemic, floods, fires, freezes and hurricanes). Analytical understanding beyond incarceration and disaster in California emerges from tracing in one place what are shared practices across contexts among governing officials and advocates (Pouliot, 2015) across the United States. The practices are familiar in both litigating and responding to litigation. The ACLU, the Institute for Justice (which describes itself as libertarian), private law firms, and other legal organizations issue reports, make public statements, and file lawsuits. Legislatures state criteria for governors to implement; in California, legislation included criteria for the prisoners the governor could release to comply with orders to limit crowding in California’s prisons, even before the pandemic. Governors make public statements and order that prisons release people given the pandemic’s dangers.

California, Mass Incarceration, and the Pandemic California is a useful case for evaluating the process of attempting to release people from prison in the pandemic. The layers of disasters are clearly evident in California, which is the most populous state in the United States. To begin with, in the first six months of the pandemic, the state had more confirmed cases of COVID-­19 than any other state (Johns Hopkins School of Medicine Coronavirus Resource Center, 2020). Prison conditions had been held to

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be unconstitutional due to prison overcrowding years before the pandemic. Next, it had answered that order with a statute in 2014 enacting “the great realignment,” which involved moving people from state prison to county jail (Aviram, 2021a). It already managed outbreaks among incarcerated people better than many states, though many prisoners still fell ill and died (Aviram, 2021c). California had a Democratic governor, who might have been expected to be less likely to resist prisoner release than governors in some other states (Aviram, 2021c). If decarceration in the midst of a pandemic were to happen anywhere, it would be in California. And if releasing people was difficult there, it would be even more unlikely elsewhere. But the story is not a simple one. Decarceration in the pandemic in California involves “complexity, multiscalarity, likelihood of feedback effects, and potentially expansive temporal distances between causes and outcomes,” which require an extended timeline to understand. Tracing the process of how something happened begins to help capture interactions among institutions, even without conclusively finding causes (Vanhala, 2017: 95). The centrality of complex interactions across institutions, with actors who have cross-­cutting concerns, and the long timeline between the court-­ordered mandate to decarcerate and the pandemic, are all hallmarks of a disaster cascade. Mass incarceration, which is a marker of limited democratic inclusion in the United States (Grumbach, 2022), made a pandemic much more dangerous for elderly, long-­incarcerated people. The courts and legal advocates both participated in efforts to decarcerate. However, attributing causation to any factor is a different matter. Since California was under orders to decarcerate people even before the pandemic, since it administers one of the largest prison systems in the country, and since decarceration is slow, the courts and advocacy are better understood as sites organizing activity than as singular causal agents. Decarceration in California during the pandemic demonstrates how difficult it can be to tell one clear story about court decisions. The long processes, together with ambiguity in courts and legislatures alike, encourage both credit taking and deflecting blame. Litigating organizes claims, telling stories about right and wrong. Litigators can hope for any number of outcomes, from advancing a career or a political cause to winning a judge’s order. Therefore, asking only whether to attribute an outcome to a court decision is an anemic interpretation of what cases mean and cannot even capture the multiple tactics litigators may be taking, including petitions to administrators, publicity campaigns, and filing court cases that may not reach a favored outcome. The mask cases illustrate



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this point. Perhaps one could ask whether a school or employer stopped limiting messages on masks because of the court case and come away with a clear story of causal attribution. But that narrow question would miss the broader point, namely, that filing a claim in court contributed to organizing publicly available stories about the pandemic, culture, protest, and polarization. Extending the timeline for disaster to better understand the complexity of a problem and the actors within that problem could, if anything, detract from the easy conclusion that the courts caused something instead of participated in it. Following the process of governing incarceration during the pandemic in one (very large) state places court cases in the broader context that they require. The pandemic allowed people to create opportunities to act on problems, by filing complaints, perhaps to amplify rather than resolve. Actors could hope these filings could contribute to reshaping the political meaning of problems, which in turn could contribute to reshaping alliances. In this scenario, incarceration and detention went from a humanitarian concern and a conservative-­identified budgetary concern to a problem for the health care system. Overcrowded prisons in California had long been litigated as unconstitutional (Petersilia, 2016; Kubrin and Seron, 2016). In 2011, the U.S. Supreme Court had held the conditions in California’s prisons to be unconstitutional under the Eighth Amendment, which prohibits cruel and unusual punishment (Equal Justice Initiative, 2020). Article I, section 17 of the California Constitution also prohibits cruel and unusual punishment. The attempt to rectify California’s imprisonment of people in unconstitutionally crowded conditions has carried on for years; the state has diverted some incarcerated people to county facilities and others to parole (Petersilia, 2016). People were only being released either to county jails or to the community very slowly. Before the pandemic, California’s legislature and governor had agreed to release up to 76,000 nonviolent offenders. Governor Gavin Newsom was the first U.S. governor to declare a state of emergency due to the pandemic; he issued an executive order on March 4, 2020 (Office of Governor Gavin Newsom, 2020). This state of emergency allowed for early action by the government and interest organizations. The pandemic exacerbated risks in crowded conditions; COVID-­19 could spread rapidly among people with existing health conditions who lived in crowded living spaces (Park, Meagher, and Li, 2020). The illness made pressing forward with decarceration for persons held in unconstitutional conditions

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more urgent. Without being able to ensure that people could stay six feet apart or taking other safety measures in California’s prisons, releasing people in response to the pandemic could mitigate harm for those who had someplace to go. In March 2020, Governor Newsom announced the early release of some incarcerated persons to limit the spread of the coronavirus in California (St. John, 2020; Fagone, Cassidy, and Koseff, 2020). In April and May 2020, the American Civil Liberties Union and the Prison Law Office, also a litigation interest association, partnered with private attorneys and filed cases in federal court asking for the release of prisoners in the face of COVID-­19 as part of ongoing litigation about prison conditions in California. They also filed a complaint to stop the transfer of immigrants to federal immigration facilities, for fear conditions in those facilities would spread COVID-­19. Cases went to both state and federal courts, with some focusing on detainees who would be transferred to federal control (National Association of Criminal Defense Lawyers et al. v. Newsom, 2020), and others concentrating on prisoners within state control. In July 2020, a federal district court, or trial court, ordered the state to determine who was the most vulnerable in prison, and to place as many of these people as possible within in-­home supervision (Torres et al v. Milusnic, 2020). On May 13, 2020, the California Supreme Court turned down a lawyers’ interest group request to stop transfers of immigrants into Immigration and Customs Enforcement (ICE) custody. Justice Goodwin Liu, the dissenting justice, pointed out the danger these immigrants were in and noted that the attorney general of California had asked the Department of Homeland Security to stop transferring people to dangerous federal facilities (California Attorneys for Criminal Justice v. Newsom, 2020). In July 2020, a federal district court, or trial court, ordered the state to determine who was the most vulnerable in prison, and to place as many of these people as possible within in home supervision (Torres et al v. Milusnic, 2020). In October 2020, a state court of appeals found that the California Department of Corrections and Rehabilitation (CDCR) had unconstitutionally neglected the health of prisoners in San Quentin Prison, California’s oldest and largest state prison. For safety, the CDCR should have reduced the population by 50 percent during the COVID-­19 pandemic, as a report by the University of California, San Francisco, a leading medical university, and the University of California, Berkeley, had recommended. It would be up to state trial court judges to implement the reduction, and in turn the state urged them to defer to the CDCR (In re Von Staich, 2020; Aviram, 2021a, 2021c). By fall 2021 the case was still in process; the state court of appeals and the



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Supreme Court had ordered evidentiary hearings, which were held earlier, in spring and summer 2021 (First District Appellate Project, n.d.; San Francisco Public Defender, n.d.). The case joined petitions on behalf of three hundred other prisoners. Here as elsewhere, the responsibility for getting people out of prison—and the credit or blame if efforts succeeded—rested with no one person or single organization: not the interest association litigators, not a California Supreme Court justice, not a court of appeals judge or a county court, and not Governor Newsom.4 Despite constitutional orders and the movement for decarceration, releasing people from prisons or detention in real life happens slowly and involves multiple participants, even in a pandemic.5 By September 18, 2020, the ACLU’s national office claimed to have taken 40 lawsuits around the country concerning immigration detention, and more than 140 “legal actions” (which can include letters) concerning both imprisonment and immigration detention since the start of the outbreak (ACLU, n.d.). Whether or not the outbreak provoked those actions or they were already in progress, whatever the outcomes, the ACLU claimed credit for protecting people from detention in the pandemic. Since organizations had been challenging incarceration, the pandemic might sometimes have been an additional claim about constitutionality on top of existing ones. For example, in January 2020, the celebrities Jay-­Z (Shawn Carter) and Yo Gotti (Mario Mims), as Team Roc, had retained private attorneys to file lawsuits challenging conditions in the notorious prison in Parchman, Mississippi (Reuters, 2020); once the pandemic struck, their lawsuit added new conditions involving COVID-­19. Decarceration pressures in California predated the pandemic. The elderly and long incarcerated, who were those at greatest risk of severe illness, were also the most likely targets for public anger if released if they had been incarcerated for violent crimes. Court filings and preliminary rulings from courts overlapped with the governors’ decisions and urging from state public health experts. Neither public health expertise nor constitutional claims were irrelevant, but neither were they unquestionably authoritative. Simultaneously, decarceration overlapped with another fallout from mass incarceration in an era of climate-­related disasters. Interest organizations were taking public stances for opportunity and redemption for the formerly incarcerated, but limiting the huge costs the formerly incarcerated faced could raise problems for political officials. The promise of redemption could serve the powerful need to manage California’s devastating climate-­related wildfires. The state, like other states, had long relied on incarcerated people to fight fires for very low wages (Purdum and Meyer, 2020). People who had fought fires for the state were not eligible to become firefighters on their release because

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of their criminal convictions. The problem is both one of managing California’s fires and an issue on one of the leading edges of the political claim that decarceration requires redemption and the need for lowering barriers to work, an issue both liberals and the conservative legal movement have claimed. The conservative legal movement in turn links lowering barriers to work to a specific constitutional interpretation propounded by prominent legal commentators, and even Supreme Court Justice Thomas. In the pandemic, litigation by a conservative interest organization that would not win in court, and that had been unlikely to win in court, linked climate disasters, conservative legal argument, and mass incarceration. It presaged more to come about constitutional interpretation from the conservative legal movement. In February 2020, just before the pandemic struck, the state assembly in California had introduced legislation that would allow judges to expunge the records for those who had served as firefighters in California while incarcerated and had then served with the California Conservation Corps. The bill allowed lower court judges to decide, on a case-­by-­case basis, whether people who had been incarcerated could serve as firefighters. People who had been convicted of violent felonies were not eligible. This process was well designed to try to sidestep potential public outcries about employing formerly incarcerated people, while for some few removing a barrier to employment and possibly bringing in more people to the critical work of firefighting. There would be no blanket decisions allowing the invitation of thousands of people into the state emergency workforce. Case-­by-­case decision making would not lead to a rapid increase in the numbers of people able to serve as firefighters. The bill signaled a diminishing of the collateral damage of incarceration while possibly increasing the numbers of people who could serve as firefighters over time. On March 4, just two weeks after the assembly first saw the bill, Governor Newsom declared a state of emergency due to the pandemic. The bill to expunge records (A.B. 2147) for those who could otherwise qualify as firefighters first passed the state assembly on June 15, 2020. It passed the state senate on August 30. Governor Newsom signed the bill into law on September 10, 2020 (California Legislative Information, 2020). On June 19, 2020, four days after the state assembly had passed this legislation but before it had passed the senate, the self-­described libertarian Institute for Justice (IJ), also an associate of the conservative State Policy Network, which was also responsible for some of the cases about state sheltering guidelines, filed a lawsuit challenging California’s law excluding people whom the state had convicted of felonies from becoming emergency



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medical technicians (EMTs). People who couldn’t be EMTs couldn’t serve as firefighters. The IJ webpage featured Dario Gurrola as the plaintiff (Institute for Justice, n.d.). The lawyers for Gurrola argued that the restrictions on who could be an EMT violated the Fourteenth Amendment to the Constitution, which was ratified after the Civil War. They argued that it violated the amendment’s requirement that no state could deny “equal protection of the laws” or deprive anyone of “life liberty or property without due process of law.” Finally, they argued that the restriction violated the Fourteenth Amendment’s clause prohibiting the states from “abridg[ing] the privileges or immunities of the citizens of the states.” The latter argument is critical to conservative legal advocates; I will describe it further next. Even after the governor had signed A.B. 2147 into law, the IJ continued the case. Gurrola could remain a plaintiff because he did not qualify to have his record expunged under the new law: he had been convicted of a violent felony. The IJ argued that the restrictions that A.B. 2147 left in place were unconstitutional and asked the court to follow a contentious interpretation of the Fourteenth Amendment, one that had been dismissed in federal courts since the 1870s. That argument was unlikely to win, and the lawyers probably knew that. Ending employment restrictions for people convicted of violent felonies could not have been the only goal for the IJ when it filed its lawsuit. So what was the goal? The IJ describes its mission as fighting for freedom (Institute for Justice, n.d.). As discussed in Chapter 2, activists in the conservative legal movement have accepted that multiple losses are necessary to change legal thinking. The IJ has had some significant victories. The IJ led the oft-­discussed U.S. Supreme Court case challenging property taking by a state government, Kelo v. New London (2005) (Hollis-­Brusky and Wilson, 2017). Kelo, like Gurrola’s case, concerned government regulation. The litigators in IJ also take cases concerning the free exercise of religion, which is the other arm of conservative litigation. On July 1, 2020, the U.S. Supreme Court issued its decision in Espinoza v. Montana Department of Revenue, holding by five to four that Montana could not exclude religious schools from state scholarships. The IJ served as the attorneys in the case. In Gurrola’s case, the IJ argued for every clause within the Fourteenth Amendment, including equal protection, due process, and privileges or immunities to contest the state’s restrictions on who could be an EMT. It revived an interpretation of the Fourteenth Amendment that predated a legendary 1873 Supreme Court decision, the Slaughterhouse Cases (1873), which limited the

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meaning of “privileges or immunities.” Before the Slaughterhouse Cases, an interpretation of the privileges or immunities of being a citizen of the United States included pursuing “ordinary callings” without restrictions from the states (Epstein, 2005: 338–340; Harrison, 1992: 1468). In the 1873 Slaughterhouse Cases, just as in Gurrola’s complaint, the lawsuit turned on whether states could discriminate among citizens when determining who could pursue an occupation. The Supreme Court held that the privileges or immunities clause did not protect a right to pursue an occupation; the clause was not grounds for courts to interpret rights. Over the years since the 1873 decision, the question of the privileges and immunities of residents of the United States has disappeared from the courts; commentators have all agreed that the Slaughterhouse Cases made it irrelevant (Epstein, 2005). Instead, in the twentieth century the Supreme Court began to apply rights in the Bill of Rights to the states, and not just the federal government. The Court has done so via the due process clause of the Fourteenth Amendment, not the “privileges or immunities” of citizens to include fundamental rights. By pulling in the privileges or immunities clause, the IJ brought in an argument that was unlikely to win in court but much admired in the conservative legal movement. In particular, the “privileges or immunities” clause is critically important to members of the Federalist Society (Hollis-­Brusky, 2015: 42, 55–56, 59), and the concept had been gaining some ground in Federalist Society discussions. According to an opinion from Justice Thomas that members of the Federalist Society celebrated, the privileges or immunities clause was the appropriate way to protect the rights of citizens within the states against encroachment on their fundamental liberties. Justice Thomas had stated this point in a decision about gun ownership (Hollis-­Brusky, 2015: chap. 2). Were enough justices on the U.S. Supreme Court to agree to interpret rights on the basis of privileges or immunities rather than due process and equal protection, then the justices could reconsider what rights the Constitution did protect. Reconsidering would return the legal debate again to contentious, divisive issues about speech, religion, race, and privacy, all of which are protected via due process. By June 2020, when the California legislature was considering opening access to firefighting and the IJ was pursuing its case, five justices on the Supreme Court were affiliated with the Federalist Society (Hollis-­Brusky and Parry, 2021). In Gurrola’s case, the IJ relied on a Federalist Society argument to argue for a formerly incarcerated man, affirming the public stance of conservative legal advocates against restrictions on work and the primacy of markets rather than government regulation for employment.6



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In February 2021 in federal district court judge John Mendez dismissed Gurrola’s case.7 All Judge Mendez had to decide was whether the legislature had a good enough reason to exclude people convicted of violent felonies from the benefit of becoming firefighters. He acknowledged the importance of fighting fires to California and the service of incarcerated people in fighting the destructive 2017 Tubbs fire and 2018 Camp Fire. He held that the state had good reason to decide to allow people to become EMTs on a case-­by-­case basis rather than by eliminating all restrictions, and good reasons were all the state needed. Judge Mendez also cited the Slaughterhouse Cases (1873) to dismiss the IJ’s arguments (Gurrola v. Duncan, 2021). A federal trial court case about restrictions on who could become a firefighter in the state of California—not usually an issue in the center of attention in debates about conservatism and courts in the United States—thus evoked the most far-­reaching conservative legal opinions, as articulated by a conservative litigation group affiliated with the State Policy Network and responsible for pathbreaking conservative U.S. Supreme Court cases. Conservative movement lawyers worked on their own justice cascade, even if its flow depended on years of action, many losses, and multiple judicial appointments. The IJ’s argument about how to interpret the Fourteenth Amendment was so at odds with decisions from the previous fifty years that the lawyers were unlikely to believe that their arguments would prevail in Gurrola’s case. The IJ likely saw his case as an opportunity to put an argument before a judge, and to advertise its interests in rights for the formerly incarcerated and in dismantling regulation. Winning each individual case and crafting mainstream arguments have not been the primary goal of conservative legal organizations; they have long believed that spreading ideas precedes winning in courts (Hollis-­Brusky, 2015; Southworth, 2008). Since the argument was an unlikely one and the state of California was enacting legislation on the same topic, advancing an argument and claiming a stand for the formerly incarcerated could have been as much the point as winning. Although court cases tell stories, once the court decides a case, a person’s story disappears, at least from the court. What Gurrola did after Judge Mendez dismissed his complaint does not show up in publicly available documents. But his story was, for a time, a face for a conservative litigation group. Litigants typically frame a case in court as adversarial; attorneys for incarcerated people are against the governor or the head of prisons. However, actors can want the same outcomes, and litigants can hope a court case can be useful leverage against some other group of officials. A court order

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could contribute to gaining greater resources from another institution. The governor and legislature were under orders to improve the crowded conditions in California prisons. Decarceration would invite news coverage of any one formerly incarcerated person who committed a crime after having been released, encouraging the public to blame the officials who had released the person. Deflecting responsibility to the courts, and in turn the long process of working out cases in court, meant that people were not released quickly—and no one was clearly responsible for who was or was not released.

Conclusion In Gurrola’s case, climate-­related disaster met mass incarceration and inequality, all amid partisan polarization. Ensuring conditions that complied with CDC guidelines would be impossible in crowded prisons. Releasing prisoners had few powerful supportive constituents, despite previous court orders. Restrictions on employment were not just a problem for the formerly incarcerated; they were a problem for a state that needed experienced firefighters as the damage from climate-­related fires increased. At the same time, since a court would decide whether or not to lift restrictions on employment on a case-­by-­ case basis, the legislature could signal concern without it being evident that many people would either be released or would fight fires. COVID-­19 provided a context for litigating problems that predated the pandemic, including mass incarceration and the wildfire threat in California. Cascading disasters may have afforded an opportunity for advocates and interest groups to chip away at damages from incarceration. Nevertheless, dispersed responsibility among multiple officials and multiple places allowed for deflecting demands to release people, or allowed those in power to avoid releasing the most elderly and ill if they had been incarcerated for violent crimes (Aviram, 2021a, 2021b). In cases involving closing places of worship or businesses, conservative advocacy organizations and religious leaders could advance arguments about the primacy of the free exercise of religion that had long appealed to Republican voters. Implementation didn’t challenge statements of principle. Advocates and some business owners could advance arguments about the primacy of business openings above public health, pursuing their view of individual property rights and, in Gurrola’s case, the “privileges or immunities” of citizenship, a favored conservative legal talking point. They need not win every case to keep the arguments in the news and in court. Conservative politics in



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the United States now included a focus on advocating for enforcing morals, particularly from the perspective of one interpretation of Christianity, rather than following an earlier conservative vision of morals as practiced in communities and not enforced by governments (Brown, 2019). In the pandemic, the way every person lived spilled over to the risks experienced by others. Even so, cases against restrictions on gathering in person—as well as the election management cases discussed earlier—pursued a version of enforcing individual rights and opposing the police power of local governments not seen in earlier eras, the same earlier eras, perhaps ironically, to which conservative advocates hearkened.

Conclusion: Courts and Accepting Loss in a Pandemic

L

itigation in the early pandemic followed familiar routes. Treating litigation about closures or mass incarceration as separate issues during this time period might provide us with insights into constitutional mobilization, the Supreme Court, or the nature of business insurance, each of which is a critical issue in U.S. governance. Taken together, however, they reveal far more: a contrast between the disaster cascade that is symbolically significant, amid contests to affirm the primacy of Christian conservatism and individual responsibility, and a disaster cascade that is materially significant, with practical consequences for business owners. They overlap in their implications: cases about religion or closures not only keep places open and lead to electoral support. Electoral support can in turn support states adopting model legislation from ALEC, much of it focused on economic regulation. Linking them shows where preexisting litigation groups and issues found opportunities or where state legislatures and governors brought together litigation and images of it. Nationally, amplifying fears that employers and businesses would be subject to liability lawsuits that had to be cut off before they started was of a piece with the long-­standing priorities of the conservative legal movement, as represented by ALEC, which proposed model legislation about liability that was not limited to the immediate pandemic. Winning by designing the rules in regulation also captured the practices of insurers, who were anticipating the problems pandemics would bring them after the 2003 SARS epidemic. Insurance companies claim they cannot pay out at the level of a global pandemic. They are in a good position to rewrite rules anticipating large-­scale disasters, as they demonstrated in changing the rules after 2003. A changing climate threatens to bring about



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more massive widespread disasters, so tracking private governance will help us track how climate disasters are governed, given that they will continue even if greenhouse gas emissions lessen. Terms such as constitutional hardball, constitutional retrogression, and democratic backsliding capture the opportunistic efforts to limit voting in the pandemic, which were first seen in the court cases about whether Wisconsin could expand access to voting. Those cases were only a prelude to the uncertainty stirred up by multiple lawsuits over the conduct of the November 2020 election. The cases depended both on groups with the capacity and interest in bringing lawsuits and, in the federal courts, on carefully chosen judicial appointments. The conservative legal movement had worked on courts and model legislation for state legislatures for years before the COVID-­19 pandemic. Of course people can file lawsuits to contest election rules, and they did. The uncertainty and mistrust in institutions that these actions sow do little to foster an agreement that would overcome the divisions rooted in politics as identity. The pandemic has been an opportunity to pursue the existing aspirations and preferences of members of the conservative legal movement, including limiting liability and entrenching the free exercise of religion. It seems safe to say that other problems in the future will provide this movement with additional opportunities. Public health writers put trust at the heart of managing a pandemic well (see, e.g., Barry, 2004). In a socially polarized electorate, people differ in which institutions they trust (Deane, Parker, and Gramlich, 2021). Gatekeeping in going to court does not rely on building agreement across constituencies before a decision. Nor are cases filtered through elected political officials. Instead, getting to court relies on having enough money and enough at stake, access to expertise, and a legal problem to pursue. Even litigation over constitutional issues, an area where interest organizations have been active for years, includes more than the leading interest organizations. No one set of political officials will control whether people go to court when their insurance will not pay or when they see an opportunity to advance an existing political cause. Litigation thus did not simply reflect existing beliefs and preferences but contributed to aligning pandemic preferences with identities and to hardening polarization that had already developed. The pandemic has allowed already mobilized private attorneys, interest organizations, and government officials to raise problems that compound one another, bringing about a disaster cascade that includes both chronic and acute disasters. The pandemic provided an opportunity to extend partisan

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ideas and blame the opposing party, rather than take collective responsibility for the unfolding crisis—even despite the relief that Congress enacted. The Senate trotted out its familiar debates about liability. Legislation in the states both exacerbated and responded to the fear of liability, allowing ALEC a chance to extend its long-­term commitment to limiting liability for business interests. These arguments elided claims about the business of shared responsibility, or insurance interpreted at its broadest. National Republican officials blamed state closure orders for businesses closing. Liability waivers would allow businesses to open, they argued, if only governors would lift the orders. Insurance, or more specifically the insurance industry’s skill in anticipating problems, writing rules, and fighting claims in court, does not fit a story about constitutional rights and closure orders. Remaking insurance for future pandemics would join the federal government to the insurance industry. Remaking liability rules would limit recovery long beyond the pandemic, again requiring people to turn to their own resources. Governance failures reveal the extent to which U.S. institutions fail to meet the ongoing disasters of COVID-­19, fires, and floods, all striking in a time of extreme racial inequality. As of 2022, the pandemic extends to civil rights, contracts and refunds, insurance, mass incarceration and detention, and wildfires. Even that list understates the reach, since not all cases linked to the pandemic will mention it, as Gurrola’s did not (Gurrola v. Duncan, 2021). Attempts to eliminate lawsuits, which were discussed and partially enacted in Congress and pursued in the states, would continue to align the courts with the argument from within the business community and the conservative legal movement that litigation by injured people demonstrates a moral failing of people in the United States and also harms businesses. While the Senate considered proposals that would fail, ALEC had the experience to rapidly draft legislation the states could adopt—and many states did. Moreover, they moved forward on this legislation even without a real threat of litigation for damages. The lawsuits that did come up requested safe working conditions or leave accommodations, as the law firm Fisher Phillips (2020) documented. Governing problems with a lawsuit and with legislation in a changing context evokes power in courts as more nuanced than a coercive order with a winner and a loser. Power often operates impersonally through the ordinary unfolding of bureaucratic processes (Fraser, 1996, chap. 10). The latter can either rely on law or avoid it. As the theorist Iris Marion Young argued (1990), domination spreads throughout institutions, which are often diffuse, thus appearing in the aggregate. Personal stories of individual domination can miss



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how impersonal structures govern, with no one person in control. Following lawsuits to their outcomes in final courts of appeal alone can ascribe too much control either to the judges or to the organizations and people filing the cases. Instead, litigation can be part of ongoing credit taking and blame avoidance. If we move from the lawsuits filed outward to who filed them and what others did with them, rather than concentrating solely on what leading political officials identify as lawsuits, we find ourselves led away from employers’ liability for illness at work or in public, which Senator McConnell had identified early on as a key issue, and toward insurance, health orders, schools, detention, and mass incarceration. All of these are part of pandemic politics. By summer 2022, the United States had experienced more deaths per 100,000 people during the pandemic than any other country but Brazil and Peru (Johns Hopkins Coronavirus Resource Center, “Mortality Analyses”). Death is an anemic measure of a disaster; it does not capture the lost time in school, the lunches children missed, the business losses, or the relationships isolation made tenuous. But it is the most available measure. There were differences across the states, and perhaps some of those differences resulted from policies. By December 2021, more than 800,000 people had died in the United States, many even after the widespread availability of the vaccine. There is no need to trace deaths or losses specifically to court cases, which is a largely impossible task. But the court cases that were filed did mark disagreements and long-­standing problems that cannot be separated from broader losses across the landscape of the United States. Death and severe illness struck nursing homes, prisons, and detention centers. Early in the pandemic, workers in meatpacking plants suffered high risks. Deaths most often happened in hospitals, out of view of most people. As “zones of confinement,” each of these places had allowed neglect and violence (Pachirat, 2011: 236, 240) long before the pandemic erupted. Illness and harm hovered out of the view. Entry to these confined spaces required special permissions, and in some people could only enter designated rooms. Only health care workers saw deaths in confinement. Even before the pandemic, writers argued that the United States tolerates so much death, including from gun violence, the death penalty, mass incarceration, and immigration detention, because dying happens out of sight, especially when visits are restricted. People without a specific reason to visit detention centers or prisons don’t frequent those places, and even those with a reason may find their incarcerated loved one detained far from friends or family. Writers have argued that requiring people to see what goes on behind

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these closed doors could change the politics of incarceration, death, and even slaughterhouses and meatpacking (Pachirat, 2011). Videos from hospital rooms housing COVID-­19 patients relied for their persuasive force on the belief that if only death were visible, no one would tolerate it (Stein and Kim, 2020), Americans would take precautions, and would take more seriously the risks they posed to themselves and others by not getting vaccinated if they were only aware of the severity of illnesses. Death is a common metric in disasters. Comparing deaths allows us to compare the harm a disaster inflicts. As the anthropologists and physicians Didier Fassin and Richard Rechtman have argued, however, measuring only deaths in a given disaster reduces people’s lives to that disaster, a single event, and reduces the disaster’s effect on people to the question of whether they lived or died (Fassin and Rechtman, 2009). That information is valuable, particularly when managing a public health disaster. But people’s lives are always much more than a disaster, and the harms suffered in a disaster reach well beyond illness and death. They include disrupted family lives, lost or gained friendships, businesses closed, and the fear attendant on going to work or the freedom and the frustration of working from home. They include emergent and changing understandings of the disease, including the experience of long COVID, which are experienced by people of all ages (Taquet et al., 2021), with as-­yet-­unclear timelines. Gaining public health recognition for long COVID required patients telling their stories, and collecting them for an initially skeptical medical profession (Patient Led Research Collaborative, n.d.). Recording deaths cannot record the variety of experiences and loss. It does not capture what people did, in this case in court, which shaped some of the pandemic’s significance. Political scientist Timothy Pachirat argues that sequestration and openness about death’s visibility operate in tandem (Pachirat, 2011). Making death and violence visible includes finding new ways to hide, and new things to hide. Where death has been visible, visibility can accompany a greater tolerance for death and violence (Pachirat, 2011: 252–255). Notoriously, in the United States, lynchings in the nineteenth century were occasions for public celebrations, not aversion (Wood, 2009). In the United States, the pandemic allowed public officials to announce through public policies a high tolerance for the death of people who were confined and out of view, whether in meatpacking plants, nursing homes, detention centers, or in hospitals. Only days after a lawsuit was filed complaining of safety practices in the pandemic in meatpacking plants—a lawsuit that led to newspapers’ descriptions of working



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conditions—the president of the United States announced that meatpacking plants were essential businesses. They would stay open. Some political officials, including Governor Ron DeSantis of Florida and Senator Mitch McConnell, answered the threat of serious illness and death in the pandemic by arguing that businesses needed exemptions from liability in case anyone claimed they had become ill at work or from health care workers. DeSantis and other Republican governors also closed gathering places early in the pandemic, but in Republican public arguments they suggested that liability, not a virus spread through the air, caused the significant losses. Whether explicitly or implicitly, political leaders and lobbying organizations such as ALEC accepted death and illness as the cost of doing business. Whether or not liability for illness contracted at work ever would have been a common issue in court cases, the argument that it had to be stopped accepted uncompensated loss as a cost. They accepted it, more specifically, among people living or working in meatpacking plants, prisons, and nursing homes and among people working outdoors but living in multigenerational households, as many landscape workers do. They accepted it among the lowest-­wage workers. Though these people remained out of sight, the orders that kept them at work were not. Organizations that pursued states in court for closing places of worship and the justices that struck down restrictions scrutinized public health evidence and guidelines (see, e.g., the argument in Roman Catholic Diocese of Brooklyn v. Cuomo, 2020). Their arguments did not rely on advocating for death and illness or doubting its severity; instead, they relied on questioning whether others’ decisions were as expert as they claimed to be, which was a critical policy issue for the conservative legal movement (Hollis-­Brusky and Parry, 2021). Constitutional claims about what is allowable do not have to describe the demand for in-­person worship. Courts could order governors to allow places of worship to open without any official taking responsibility for putting anyone additional at risk, since people could and did stay home. Reports about the cases, though, were clear: the free exercise of religion and speech required that places of worship did not close. Disputes about the courts and in the courts relied on this underlying tolerance for death in the United States, particularly for those who are lower income and already confined, which complaints about public health restrictions further entrenched. Animal rights activists have argued that Americans would not tolerate the industrial system of animal slaughter if they could see it. But Pachirat argues that perhaps they would, since people have tolerated visible violence in the past and it is easy to imagine an appetite for more.

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In the pandemic, leading political officials may not have made the pain of illness and death in the pandemic visible. They did, however, clearly accept and even advocate for a greater risk of death for those who were already out of sight and extremely vulnerable. These officials juxtaposed illness and deaths against an abstraction called “the economy,” as though the economy was something different from all of us working, caring for each other, and falling ill or not. The economy quickly adjusted for work that could be done remotely, and many people became expert at conducting electronic meetings and presentations. For those who needed to continue to work, the demands of the economy atop the need for health care workers required that people perform their work despite the limited help with care work in the United States, which became ever more important and widespread in the pandemic. What was the logical conclusion to this argument? If work is the only imagined way of sustaining life, even though it threatens others’ lives, then the wrongdoer—from this perspective—becomes the person or institution who closes workplaces. Therefore, court cases claiming closures were unconstitutional contributed to naming the wrongdoer, with work the only way to maintain life; sustenance through some mechanism other than open businesses that threatened workers’ lives was implied to be unimaginable. The political theorist Wendy Brown has argued that the neoliberal dream of free markets without government support and a life regulated through morals not enforced by the state has become a monster, something the early postwar theorists of neoliberalism did not envision or could not have imagined (Brown, 2019). Business organizations can turn the state to their purposes, and they do. Organizations argue for the morality of the rule of markets, so they argue that the rules keeping markets open and forbidding collective responsibility are morally important. In the pandemic, claims to open places of business overlapped with claims to open places of worship. Conservative policy advocacy networks supported both claims, including in court. In a world where officials amplify their decisions through social media megaphones and rely on simplified statements to express complex policies, court processes will not settle conflict. They instead restate the divide, for example, between those who believe in the primacy of religious practices and those who maintain the primacy of public health judgments, however flawed by uncertainty and multiple concerns. Lawsuits contribute to the noise when national political officials themselves refuse to agree that the collective good means protecting public well-­being here and now.



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Following court cases, whether dismissed or settled, in both state and federal courts has allowed us to follow the disaster cascade and the multiple roles courts play during a period of crisis, particularly when they now contribute to confusion and doubt. The threats from filing them, the publicity, and the multiplicity are part and parcel of the political strategy and the ensuing political effects. These effects are invisible if we rely only on the high-­profile cases from the U.S. Supreme Court, or if we try to measure whether a lawsuit causes an instrumental change in policy practices. Both are the underlying assumptions of much of scholarship on the politics of courts. To see the real impact, as I have argued in this book, we must get closer to daily life, symbolic meanings, and material effects. Advocates identify trial court cases as symbolically meaningful; the scholars who try to understand what they are doing would do well to try the same thing. Advocates connect the pandemic, precarious employment, climate-­related disasters, and mass incarceration. Court cases name problems. They make practices and documents public, preserving them in one place rather than leaving them scattered across the internet. They contribute to crafting the facts of a story. And a politics of courts can describe how problems move between institutions and are changed by and during these movements. Alternating between individual cases such as Gurrola’s (Gurrola v. Duncan, 2021), news coverage, and case aggregates allows us to begin to capture what the courts see—to begin to gain a sense of the overwhelming disaster cascade that has been the COVID-­19 pandemic. Indeed, the repercussions of this disaster are still unfolding. During the early part of the disaster, cases that did not rely on interest groups tended to be those where individuals or businesses asked for refunds or insurance payments. The organizations with the greatest number of claims against them had written the rules ahead of time to favor their interpretations, and they could afford to invest in fighting for favorable rule interpretation. The insurance companies were largely successful in the claims against them in both state and federal court in the first wave of cases, despite occasional exceptions. The same insurance companies managing business interruption claims also manage claims after fires and floods, all of which are proliferating in a changing climate. In cases that turned out to be contentious within the current climate of partisan social divisions, organizations that had already long been claiming their rights in court continued to do so. Some of the litigation early in the pandemic addressed material losses that people experienced, from canceled concerts to businesses that insurance would not compensate after states ordered closures. Other litigation was

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instrumentally significant for partisan divisions over election administration. The election lawsuits concerning Wisconsin’s primary in spring 2020 was a leading example. The national attention it garnered, along with a decision from the Supreme Court, further affirmed politics, even state politics and special elections, as national, and as signaling national issues. Other lawsuits in the pandemic about the presidential election would end up being dismissed. Even when dismissed, however, lawsuits could foment uncertainty and mistrust, meeting the uncertainty of public health information. Neither dynamic fosters trust, which public health writers have argued is critical to managing public health problems. Finally, I have noted that some lawsuits about pandemic public health measures aligned with the electoral strategies of the Republican Party. Partisan identity now lines up with other identities, once distinct, such as religious practices, geography, and race. With politics as a social identity, small differences between groups, or differences that once might not have signaled anything about party, become partisan (Mason, 2018: 13–16). Partisan identity then signals which policies to prefer, and did in the pandemic (Gadarian, Goodman and Pepinsky, 2022: 7–10). In the pandemic, advocacy groups went to court to pursue policies that marked group membership. Masks, support for closures, and support for the vaccine all became charged partisan issues without the potential for compromise that, for example, money in a settlement about business insurance could offer. Myriad actors pursue the policies that reinforce partisan differences. They include local governments, nonprofits, and advocacy groups, and courts, despite the focus in academic analysis on either attitudes or opinions by the mass of people and decisions by national political officials (Ostrom, 2011). Courts can offer opportunities for small, well-­resourced groups to have an outsized influence. Amplifying differences and questioning so many measures in court defines a pandemic as something other than a shared problem with shared responsibility. Shared problems meeting shared responsibility, alongside trust, are key to managing pandemics (Snowden, 2019). Anyone with the resources may file a lawsuit, and information about complaints or potential complaints can spread easily, with interest organizations soliciting lawsuits via their websites. The people as an undifferentiated whole did not have to hold already formed preferences about mail-­in ballots, about extending dates for elections, or even about in-­person worship in order for an organization to pursue these policies. People’s preferences about permitting in-­person worship also represented religious affiliation, which itself is closely tied to partisan identity. Conservative Christian identity also stands



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for other issues on which the parties take very different positions. The courts have long been key places to dispute limits to access to abortion, culminating in the June 24, 2022, Supreme Court decision Dobbs v. Jackson Women’s Health (2022), which freed the states to prohibit abortion. Sowing fears about liability for business owners when most of the cases that were actually filed—cases about insurance, refunds, and civil rights—had nothing to do with that liability contributed to the stereotype that the people who wrongly litigate are poor. Litigation for those most at risk, incarcerated persons, did not result in many releases. Those who were released were most likely to be people close to their release dates anyway, not those most at risk. Yet the legislation that states enacted stated that health care workers would not be liable for injuries during a disaster. The examples Republican leadership gave cited lawsuits not from people who were actually ill or caring for those who were ill in a global pandemic, but hypothetical people who would sue over the enforcement of social distancing measures. By implication, the courts are so unpredictable that they could award large amounts of money to people even when they had not been injured at all. Litigation about insurance needed little mention by public officials; insurance companies had long relied on contract language to limit how much they would have to pay, and state and federal courts managed cases challenging the ambiguity in language. Courts in the pandemic were as asymmetrical in their meaning in politics as electoral issues have been. Arguments about liability, with few actual cases, could form a backdrop for a well-­organized, already existing antiliability campaign from ALEC. Constitutional cases, particularly from the Supreme Court, garner publicity. This publicity, in turn, could appeal to core voters for the Republican Party, particularly given that judicial appointments had been a high priority for the Trump administration (Ziegler, 2022). The state election cases the Supreme Court decided early in the pandemic generally supported the Republican Party. Filing cases, as lawyers for the Republican Party did, even without favorable outcomes, could increase mistrust and doubt even without being decided. Constitutional claims about keeping places of worship open could also garner publicity affirming the importance of the free exercise of religion, and no additional people had to set foot in places of worship to undermine the claims to the need for public health measures. In contrast, interest organizations that were usually understood to be on the left in the United States, such as the American Civil Liberties Union, needed people to be released, not just a declaration of right. Implementing decisions was not appealing to an electorate. Few people were released. Few political officials

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wanted to take responsibility, and decisions moved from court to court and from governors to agencies. The dream of disaster is that shared problems that no one person caused will bring people together. Wars and alien invasions have been cited during the pandemic as the kind of momentous events that might have drawn people together, across divisions that encompass not only party, but also race, gender, where we live, and practices that would seem not to follow partisan identity, including decisions about the cars we drive, and whether we report attending places of worship (Mason, 2018). Writers have imagined that we might trust the experts more once the pandemic ended (Christakis, 2020: 289–292; New Yorker Politics and More Podcast, 2020). But the mechanisms by which divisions worsen and fault lines widen are now myriad and spreading. Today these mechanisms include how the courts govern in everything from the less visible issues of insurance and liability stories told without nuance to court decisions about closing businesses or places of worship. These lightning-­rod issues did not happen because the courts took the initiative by themselves. Rather, the courts were asked to address specific problems by long-­organized interest organizations. The different electoral meanings of decisions created reasons either to move decisions between courts and elected officials, as with the release of people who have been incarcerated, or to celebrate statements by the courts that would inspire electoral groups. Reducing the actors concerned to one flawed president or his presidency, as the first studies of pandemic governance failures largely did, flattens the array of problems and incentives in governance that continue to operate today. Divisions in the polity predated the pandemic and will likely outlast it, and the interest organizations that pursue divisions in court and in state legislation have complementary interests. The conservative “troika” includes the State Policy Network, which includes ALEC and the ADF. The latter centers on litigation about religion and the former on antiregulatory issues, including issues concerning energy use (Hertel-­Fernandez, 2019). The United States leaves the pandemic with strengthened rules against liability, an insurance industry anticipating multiple future disasters, and shored-­up protections for religious worship. People and institutions did not all pull together in the pandemic; they did not all prioritize public health. Nor did those who sued to limit access to absentee ballots and expand the primacy of religion understand responsibility as caring for each other and taking responsibility for others’ health while also protecting themselves. Public health had not been the highest political priority before the pandemic; and, win or lose,



Courts and Accepting Loss in a Pandemic 169

court cases and threats about liability could affirm that it would not suddenly become one. How can we do better? For those who argue for linking disasters together and recognizing how they amplify each other, integrating the human element within a disaster over an extended timeline is a start. There is no understanding the 2020 pandemic without understanding that public health and this pandemic were not everyone’s priorities, including interest organizations and courts, and that the fight for electoral gain and business advantage in an affectively polarized world can be a higher priority. There is no understanding the pandemic without the long-­term campaigns in and concerning the courts. These include work by the Christian right to establish the primacy of religion, of multiple groups and constitutional rulings to address conditions in prison, of the insurance industry to anticipate a pandemic, and of the thirty years of work and success by ALEC in the states to limit liability and establish limits to voting. Decisions about public health did not come solely from central national leaders. Many people played a part in this large and complicated story. This array of actors and institutional contests preceded the pandemic. The broad array of actors and institutions who see opportunities in court or no alternative but going to court when confronted with losses will also continue to contend with climate-­related disasters and adapting to a changing climate. These outcomes were not inevitable; they resulted from the way people have organized claims in court. The Bill of Rights does not require a freedom from quarantines, closures, or vaccines. The flexibility of legal standards means that officials can frame them for their own purposes. Hijacking the meaning of freedom as something we experience individually, without common care or responsibility and involving a high tolerance for death and illness, is not a triumph of either democracy or legal rights. Moreover, it results from governance decisions that refuse to take our interconnectedness with one another and our world seriously.

APPENDIX

A Note on Data and Methods

I

n the pandemic, even more than usual, how one could work online depended on responsibilities at home. The method included the many people who help keep our lives afloat. I could work because my daughter is an adult. She was a senior in college in March 2020, when I drove to move her back home to live with me. On the drive, we listened to the podcast Throughline, which my daughter loves. The episode explored the smallpox outbreaks between about 1898 and 1903 and vaccine litigation that came out of it, including the 1905 U.S. Supreme Court case that came from it, Jacobson v. Massachusetts (Throughline, 2020). That case—and the drive home— reminded me that there would be most likely be some kind of litigation about the U.S. Constitution issuing from the current pandemic. It also made me aware that constitutional litigation was not how most people would experience the pandemic, including fortunate people who could stay at home and still get a paycheck, like me. I began to wonder about the stories. I collected reports of cases identified in newspapers, in blogs, and on websites and news reports of how members of Congress described litigation or likely litigation. Over the year, I followed reports, case trackers, and the websites of advocacy groups and law firms. Relying on multiple ways of gathering information became critical as I realized that the significance of cases rested in their local context, in the very fact they were filed rather than decided, and in what advocacy groups and officials made of them. The decision from a final court of appeal became less important, particularly because so many cases would not get to a final court of appeal. These stories were often not captured in standard court reports. Understanding the workaday court cases requires following what complaints are filed, not solely what is covered in the news or what the Supreme Court decides. Most cases filed early in the pandemic were insurance cases,

172 Appendix

particularly business interruption insurance. Businesses that had to close early in the pandemic turned to their insurance companies, and insurance companies denied payments. This book contrasts three different fields of legal complaints in the pandemic in order to capture the different meanings and the different organizations mobilizing complaints. First, I discuss coverage of the threat of liability lawsuits and how states responded. Second, is a description of the insurance claims and potential responses. The third field involves constitutional claims, including cases the U.S. Supreme Court decided. These cases have both instrumental effects—for example, limiting governors’ ability to limit in-­person worship—and meanings that exceed those effects. Liability politics have long stood for debates about personal responsibility. The symbol of the Constitution, and how the Supreme Court interprets it, represents the law in the United States for many people, however much insurance cases capture more people’s immediate experience. In turn, since the president appoints federal judges with the approval of the Senate, controlling judicial interpretations of the Constitution signals the importance of partisanship and elections in the United States. Court cases in the United States can be either state or federal, and the two can be different kinds of claims, which are reported differently. Many people experience their complaints in state courts because they claim state law is being violated. Examples from the pandemic include a claim that an insurance company has not paid what it owes to someone who was insured for a business interruption. Other complaints find their way into federal court because someone claims that federal law has been violated. An example is a claim that ordering businesses to close would violate the Constitution. Another would be a complaint that an employer had not granted sick leave as the federal Families First Coronavirus Relief Act (FFCRA) required. People file complaints, and courts decide what to do with them. People who lose can often appeal. The legal profession and law reviews and legal education have long identified—often implicitly—appellate court outcomes in cases as key to what the law is. Instructors draw students’ attention to fine distinctions between appellate court outcomes, not patterns of cases and least of all patterns in lower courts. These distinctions are often not familiar to people telling stories in daily life about wrongs, whether they are about losing sick pay or about an insurance claim. Even the distinction between state and federal court is not always familiar to people who have not studied courts. Complaints in court reorganize everyday experiences of wrongs by jurisdiction, or by which court can decide (Mertz, 2007).

Appendix 173

Even if a court decides a case, it may not be available through public reports. Long ago, scholars described studying courts from published opinions as studying the “iceberg from its tip” (Christina Boyd, Kim, and Schlanger, 2020, quoting Eisenberg). In recent years, online reporting systems have published more court decisions. Comparing different reporting systems confirms that official reports capture cases that differ systematically from a wider sample of all cases that are decided (Christina Boyd, Kim, and Schlanger, 2020). Even so, studying the decisions that are reported often centers on one kind of court, the federal courts. Each state has its own set of reports. Even refining how one samples publicly available cases would still miss the everyday nature of the complaints that most people have. Courts dismiss cases or cases settle before a decision, sometimes leaving little trace in official reports. Tracking only what courts decide rather than what they do not decide thus misses a large part of the iceberg and biases findings about how courts participate in governing—focusing on decisions rather than on cases that are filed. Relying on published cases and variations across districts also biases studies toward what happens in federal court. But available evidence is expanding, even if it is not comprehensive. Online state and federal systems make more decisions available, and these are different decisions from those that derive only from official reports (Christina Boyd, Kim, and Schlanger, 2020). Commercial services such as Law 360 and Courthouse News publicize cases. People sometimes put their own court documents on the Web. For example, the Choctaw Nation’s complaint about being denied insurance was published on the Turtle Law website; Turtle Law describes itself as “the leading blog on legal issues in Indian country” (https:// turtletalk.blog/). There is no systematic way of finding all complaints, but complaints available from a computer screen rather than in an archive are growing in number, and they are very useful for showing who goes to court and how. Studying a bigger part of the iceberg could be important for two reasons. One would be to understand court dynamics, including why judges decide as they do or how they collaborate. That reason, while worthy of attention, is not the point of this study. A second reason would be to gain a closer understanding of the legal problems that people who have the resources to go to court experience. The purpose of this book is to get a better picture of where people experience the courts and what that implies about where and how courts govern in the pandemic, in the context of a changing climate. Tracking the cases filed is critical to following the business of courts since most cases do not result in a decision from a final court of appeal. Following the business

174 Appendix

of the courts, in turn, brings about a better understanding of who experiences the courts, and how—more so than if we simply follow final courts of appeal. What is more, because cases that judges do not dismiss can take several years to work their way through the courts, awaiting decisions from final courts of appeal will miss cases in process, which matter in governance processes that include legislatures, governors, and the people who file the cases. Outside criminal law, the popular image of law usually entails either constitutional law or the threat of liability litigation (Haltom and McCann, 2004). These two fields miss the businesses that tried to collect insurance when they had to follow state closure orders during the pandemic. They also miss all the people who tried to get out of prison or jail when facing the virus’s spread in confined spaces. As Dorothy Smith has argued in advocating for studying the everyday (1978), people can be experts in their own lives. During the pandemic, restaurants throughout the United States reconfigured their menus for takeout food in the face of closure orders. Some began to stock groceries that could be in high demand as people chose to shop at a nearby restaurant rather than a grocery store. Reconfiguring a menu or bringing in groceries to sell require expertise in running a restaurant, including knowing one’s community. But how insurance is denied when a business closes, how insurance companies began to explicitly exclude coverage, or whether courts will do anything about it if someone files a complaint—these questions all fall well outside everyday experience. To understand the latter questions requires placing the everyday in structures to understand “how they are knitted into the extended social relations of a contemporary capitalist economy” (Smith, 1978,: 110). Everyday experiences of the law most often include law without courts: deciding whether and where to cross the street when stoplights govern or whether and when to evacuate given a disaster order. The everyday power of law thus rests in the practices people take for granted; most of the time, they don’t lead to complaints (Silbey, 2005). However, courts and patterns of complaint can reveal where everyday practices meet disappointment and failures in the world created by a pandemic. The everyday business of courts in governance is a far cry from the appellate cases that comprise the usual fodder for analyzing experiences with courts. Tracking cases filed is critical to following the business of courts, since most cases do not result in a decision from a final court of appeal. Following the business of courts brings about a better understanding of who experiences courts, and how, than does following final courts of appeal. Following cases filed is difficult to do with the commonly used commercial services, which

Appendix 175

report states separately. In the pandemic, law firms and a team from the University of Pennsylvania aggregated cases filed before they were decided. To capture different experiences of legal complaints in the pandemic, this book draws on databases of court filings during COVID-­19 that both law firms and a University of Pennsylvania team led by Tom Baker assembled. During the pandemic, multiple law firms made use of collected information on court filings, turning these numbers into graphic data visualizations to represent just how many lawsuits had been filed during the pandemic and what kinds. Aggregating complaints in this manner is time-­consuming, as there is no simple way of gathering all court cases. The databases are different, depending on what cases people intend to gather. The first and most general one comes from the law firm Hunton Andrews Kurth (HAK) and includes both state and federal cases. This database has been referred to as the most reliable source by multiple organizations, including the National Conference of State Legislatures (NCSL). I asked Hunton Andrews Kurth if they would share their data with me. They very generously shared a spreadsheet with the first lawsuits filed during the pandemic, from March through to September 28, 2020. They hand coded many of the cases for the complaints concerned, though they did not share that coding. It is labor-­intensive work. Tom Baker also generously shared the original data and coding work that the University of Pennsylvania team did for insurance claims. An employment law firm, Fisher Phillips, coded employment liability cases filed, both state and federal. The law firms published beautiful visual representations of what they found on their websites—graphs of case filings and a map of the United States, with states color coded by the numbers of lawsuits filed. The reader can click on a state to see how many cases people filed there and what the grounds of a complaint entailed. The reader also can track case filings over time with a click. Every case requires claiming that a law was violated, making it possible to count the different kinds of claims made and to determine which are the most numerous. Fisher Phillips lists the grounds for claims and numbers of different kinds of employment liability cases. Hunton Andrews Kurth lists the different kinds of claims across all those they find related to COVID-­19. Examples include claims to get out of prison because of the threat of COVID-­19. The University of Pennsylvania case tracker follows insurance claims. Throughout the country, businesses filed claims with their insurance companies following state closure orders. Insurance policies, for their part, covered “business interruptions.” But to insurance companies, “business interruption”

176 Appendix

policies did not include closures due to viruses. Thousands of businesses filed claims in court against their insurers. These claims could be filed in state or federal court, depending on the business and how a lawyer crafted a claim. The University of Pennsylvania COVID-­19 Insurance Tracker (COVID Coverage Litigation Tracker, n.d.) could follow cases to their final outcomes because so many were quickly dismissed. It also included graphs and pie charts showing how often cases were dismissed. Courts dismiss these cases when there is so little legal basis for a claim, in a court’s interpretation, that there is no reason to proceed. The resulting databases and visualizations are new, not just with the pandemic, but because law firms have not usually published information about case filings or complaints in court. Law firms have had little reason to gather and publicize patterns of cases, especially cases filed. Following cases filed has long required gathering information from separate state reports or traveling to archives, which capture only a locality’s cases. Researchers often rely on for-­profit databases to gather information about cases. These databases, such as LexisNexis or WestLaw, are available in some universities. They report how courts have decided cases. Larger law firms and some universities subscribe to a news service reporting a wider range of filed cases. These visual representations and the ease of clicking through them, following different ways to represent cases, afford a map of complaints in court that is not usually available. The representations also imply a thoroughness that is not actually possible to achieve. The increasing accessibility of records aggregated as databases invites inquiring after how they were produced, or recognizing the “care work” that goes into assembling and maintaining them (D’Ignazio and Klein, 2020: 178–88). Records always have contexts for their production and decisions about what is included or excluded and why. As the data science scholar Yanni Loukissas argues, all data have a place: not just a physical location, but a context of purposes and knowledge shaping meaning, production, and use (Loukissas, 2019: 18–19). Law firms’ insights from the caseload they had before the pandemic condition the aggregation of court cases that private law firms and a team of insurance scholars compiled in the pandemic. Knowing that private law, or lawsuits between individuals or organizations, would generate litigation would turn data collection to court reports, not to the cases reported in general interest news. Drawing only from the latter would lead to a conclusion that the pandemic meant litigating constitutional conflicts, when what the pandemic encouraged was reporting constitutional conflicts.

Appendix 177

So what resources can these database creators use? The United States includes different court systems in every state, and no one place reports all cases. At least one law firm and the team at the University of Pennsylvania relied on the professional publication Courthouse News for state court cases. Representations also can imply certainty about what cases are, or what they mean. The elegance of data representations on these websites makes them look admirably complete, though they cannot be (Ruppert, 2015). As Fisher Phillips put it: “Because of the inherent limitations in tracking such cases in every courthouse in the country, the information gathered should be considered a comprehensive, but not exhaustive, dataset” (Fisher Phillips, 2020). They would argue the dataset is likely to include the range of cases filed and the rough proportions, though not every case. Aggregating cases reported in professional news changes the place (Loukissas, 2019, 52) for cases, from the specifics of a complaint to a database of similar and different complaints. Therefore, in this study I do not analyze cases for variation in outcomes by state, who appointed judges, what their previous experience had been, or other criteria that are sometimes used in studies of judicial politics. It is enough to see the range of cases, and note what the datasets include compared to what dominant stories about litigation are. The only way to check these case reports and what they represent as caseloads is to check reports against each other and find how the patterns do or do not match and whether numbers of reported cases filed vary by orders of magnitude. Where I could I cross-­checked case filings against websites that collected more specialized cases. For example, the website classaction​ .org invites ­people to submit class action suits. That database has also organized all lawsuits filed mentioning COVID-­19. Class action cases gather together cases with similar factual claims across different individual people who are injured. Once again, no one place reports them all. The law firm DLA Piper reported the class action suits filed in the first three months of the pandemic and represented them graphically. The website churchlawandtax​.com listed cases against closures early in the pandemic. It did not list cases captured through readings and datasets. I draw primarily on approximately six months of lawsuits filed after March 11, 2020, when the WHO declared a global pandemic (Katella, 2021), and ending in September of the same year. I follow some issues where other institutions responded later into the pandemic. I also examine who brought suit, drawing on the spreadsheet shared by Hunton Andrews Kurth that listed all the lawsuits they had found between March 11 and September 28,

178 Appendix

2020. Following who brought suit allows me to link the pandemic to legal resources and organizations, including grounds for claims and governance in the pandemic. Since organizations and claims persist, they will appear in the next pandemic. I also read lawyers’ websites. To track how states have responded to lawsuits or the threat of lawsuits, I turned to the NCSL, which aggregates information about legislation and policy issues in the states. They have reported on state legislation that would try to allow insurance claims to go forward. They also reported state legislation prohibiting claims about liability. I relied on Ballotpedia’s reports of partisan control of governors’ offices and state legislatures to track partisanship, litigation, and legislation about liability and closures. Lawsuits are part of the governing repertoire in the pandemic. The significance of a Supreme Court case elevating the free exercise of religion lasts in political divisions long after the Court has decided the particular case and its effects spill over into other fields. The courts’ reach is as wide as either interest groups or individual legal problems can make them. The point of the present analysis is not to identify the end. This book also asks where case filings in state and federal courts and decisions from the Supreme Court originate. Many cases depended on existing political and business organizations that long predated the pandemic. The large law firms that assembled databases have specialties in areas of law that would involve some litigation, such as insurance or employment. In cases before the Supreme Court, groups that had long litigated the free exercise of religion filed cases. Political parties filed cases about elections in the pandemic. Defining the problem that needs explaining as one of the Supreme Court outcomes deflects from including insurance cases, which are arguably the cases with the greatest material significance to a large number of people. Public defenders and criminal defense attorneys filed cases to try to release people from jail or prison. Across these various issues, most cases are dismissed or settled. Their resolution only very distantly relies on data commonly used in studies of courts, which include outcomes, people’s attitudes about doctrine or about the courts, and judges’ attitudes. Centering only on final outcomes in final courts of appeals could similarly miss the link between mass incarceration, the pandemic, and litigation. That is why this book centers instead on institutions and actors in context. All are acting in a field that came before them and will last after them. For example, Florida’s law limiting employer liability in the pandemic makes the most sense in the context of long-­standing work by conservatives to limit liability in the states.

Appendix 179

Turning from the individual attitudes about politics that are the primary material for analysis of governing to institutions and their practices depends on having some preceding awareness of governing with courts. Social sciences prizing clear, context-­free models turn to simplifying studies about individual attitudes or behavior and shy away from the complexity that physical scientists argue is required if we want to understand disasters as cascades. Studies of attitudes cannot capture the governing institutions that organize people’s attitudes and behavior. But surveys and online experiments can assess attitudes about the pandemic and public health measures; and surveys and experiments can isolate attitudes about wearing masks in public or about business closures and orders about them, as polls have done. These measures can also assess attitudes about the legitimacy of closure orders, and about when and whether people would follow decisions from a court. Research on attitudes puts individuals rather than institutions at the center of governing. The two are connected to the extent that individuals’ attitudes govern what institutions do and whether the experiments fully capture how people decide. Since histories and institutional rules governing who participates matter, mass attitudes do not capture case filings, state legislation limiting liability, or why the cases that did come before the Supreme Court could do so. Legal processes and outcomes in turn promote beliefs in success or its possibility, which can keep voters motivated. Contextualizing courts and extending the timeline to before the pandemic thus allows us to put together a puzzle (Schwartz-­Shea and Yanow, 2012) and retheorize courts in governing disasters in a country that governs in part through litigation. Complex interactions in institutions are difficult to capture through experiments and surveys, and complex interactions in disaster cascades are even more challenging—because these problems are managed by governing officials. Following case filings requires relying on litigators in criminal justice systems, in insurance, and in civil rights to craft the full range of governance problems that the pandemic and related disasters touch on. Capturing this range requires not relying on identifying problems from the center, or from what attracts newspaper reporting. Work that contextualizes lawsuits and their political fields often relies on research generated from someplace other than a computer screen. In the pandemic, hands-­on research became more difficult. Awareness of the interest organizations already active in litigation, the ease of accessing their websites, and the availability of regional news online together allowed researchers to find links between issues and political tactics while still working remotely.

180 Appendix

Working in the pandemic in a world that was already relying increasingly on electronic media and information sharing thus allowed access to a wide array of information. Law firms have websites explaining their expertise and advising about the risk of lawsuits; interest organizations solicit complaints through forms on websites, which are relatively easy to submit for anyone with an internet connection; webinars on insurance were available; and thus research at an in-­person conference was unnecessary. The aggregating that the law firms now do once would have been available only in offices and on paper. Now they are available to anyone with an internet connection and a computer. In reflecting on social science research through a computer screen, the critical data scholars danah boyd and Kate Crawford argued in 2012 that shifting research from physical fields to working at a distance on a screen, through data that travels across contexts, changes what we know. It doesn’t mean that we will know more. Since boyd and Crawford published their article in 2012, research on screens has captured even more of life, as people live more of their lives on screens. For much work, research in physical presence was not possible early in the pandemic. Gathering information from organizations by reading what they said on their websites captured how they wanted to represent what they were doing. Triangulating records of cases filed, including who filed them, with news reports and interpretations by key actors invited the attribution of the meaning that boyd and Crawford (2012) argue drops out of data analytics.

NOTES

Introduction 1. Although this argument has long been made about the United States, key issues, including immigration, environmental rules, and equity for women, are litigated around the world. See Cichowski, 2007; Sonnecken, 2013; Sterett, 1997. I discuss the point further in the next chapter.

Chapter 3 1. However, Nathaniel Rich’s Odds against Tomorrow (2013) is about the financialization of climate risk and disaster. 2. Litigators can find those with complaints, rather than the other way around. Routes are multiple. Many legal websites have forms for submitting complaints. 3. Legal testimony about a disaster’s cost can be crafted into publicly available stories. See Erikson, 1976. 4. Early in the pandemic, Stephanie Jones challenged her employer’s decision to terminate her. A federal court heard the claim. Jones complained both that she was fired due to race and that she was denied relief under the Families First Coronavirus Relief Act (FFCRA), enacted March 18, 2020 (Jones v. Eastern Airlines, 2021).

Chapter 4 1. Increasingly and at the behest of COVID-­19 patients, the medical profession is recognizing “long covid,” involving long-­lasting disabling symptoms. Long covid apparently can result from even mild acute cases (Davis et al., 2021) 2. I am grateful to Hunton Andrews Kurth for sharing data from their Coronavirus Complaint Tracker (CCT), and for allowing me to use it. In the tables I report their codes from their website. The spreadsheet they shared did not have all the codes. Many of the uncoded cases were against departments of correction or sheriffs, primarily in New York. I discuss the cases later in the chapter. 3. However, the California law firm Dhillon Law Group took cases in California about closure orders and the free exercise of religion, which are discussed in the next chapter. It also challenged insurance companies’ refusal to pay out for business closures. https://​www​.dhillonlaw​.com​/covid​-19​-litigation/. 4. Thanks to Mike Sullivan for sharing his knowledge of the PPP process.

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Notes to Pages 113–155

5. Lawsuits and insurance articles refer to the ISO form CP 01 40 07 06, “Exclusion for Loss Due to Virus or Bacteria.” See, e.g., Koch, Maniloff, and Meta, 2020; Locke and Appel, 2020; Dukes Clothing LLC v. Cincinnati Insurance Co., Complaint, 2020; Lehigh Valley Baseball, LP v. Phila. Indem. Ins. Co., 2021. 6. Many thanks to Tom Baker and the Insurance Complaint Tracker team at the University of Pennsylvania for sharing data and answering my queries. 7. State courts could find themselves home to many cases because people may have wanted to aggregate cases in one court, to create aggregated multidistrict litigation. That seemed to have been true of Pennsylvania. Kamryn Jackson and Tom Baker, University of Pennsylvania Coronavirus Insurance Tracker team, personal communication, November 23, 2021. For follow-­up, see Grzncic, 2022.

Chapter 5 1. On judicial appointments as hardball, see Hollis-­Brusky and Parry, 2021. 2. The U.S. Supreme Court also relied on the emergency petition without full consideration in the September 2021 five-­to-­four decision to allow a law from Texas to go into effect likely to stop almost all abortions in Texas. Whole Women’s Health v. Jackson 594 U.S. ____ (2021). The Court issued the opinion just before the law was to come into effect. The per curiam opinion was one long paragraph, and it did not mention abortion. Instead, it cited “complex and novel . . . procedural questions” the law raised. The dissenters did talk about abortion in opinions longer than the main opinion. 3. The NCLA was founded in 2017. It lists its mission as challenging administrative state encroachment on constitutional freedoms (NCLA, n.d.). It does not list its funders on its website. Its Form 990, which all 501(c)(3) nonprofit organizations must file, lists a grant as its source of funds. 4. The governor was later subject to a recall effort. He won the recall election in September 2021 (Hubler, 2021). 5. Hadar Aviram generously discussed and shared her work in progress on the efforts in California to release people from prison and jails during the pandemic. Personal communication, November 18, 2021. 6. In June 2022, when the U.S. Supreme Court issued its decision in Dobbs v. Jackson Women’s Health (2022), which declared that the Constitution did not protect access to abortion, Justice Thomas issued a concurrence arguing that decisions concerning other rights established via the Fourteenth Amendment should also be struck down. Justice Thomas’s goal of relying on the privileges or immunities clause for a more limited set of rights was making headway (Robin, 2022). 7. President George W. Bush nominated Judge Mendez to the bench in 2007. He was confirmed in 2008 (Ballotpedia, “John Mendez,” n.d.)

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INDE X

Agamben, Giorgio, 20 AghaKouchak, Amir, 15–17 Agostinho v. Portugal, 66 Alabama Association of Realtors v. Department of Health and Human Services, 143–144 Alliance Defending Freedom (ADF), 10, 52–54, 57, 128–129, 135–136, 168 Alliance for Prosperity, 52 American Civil Liberties Union (ACLU), 53–54, 146–147 American Legislative Exchange Council (ALEC), 2, 48–49, 52–55, 85–86, 158–169 passim American Medical Association, 140 arbitration, 78–79, 124–125 Army Corps of Engineers, 76 attorneys general, 71, 76 authoritarianism, 4–5, 46–48, 138 Aviram, Hadar, 25, 145–150 Baker, Tom, 113, 175, 182n6, 182n7, 213 Baldwin, Peter, 36–38, 58, 89 Barouki, Robert, 30 Barrett, Amy Coney (Justice), 56, 138, 143 Barry, John, 35–36, 70, 131, 159 Beck, Ulrich, 37, 38, 142 Black Lives Matter, 128–130 Bouwer, Kim, 63–64, 73 Brown, Wendy, 10, 124, 126 Brown v. Azar, 143 Brown v. Board of Education, 54, 72 Buffalo Creek (dam failure), 75 Calvary Chapel v. Sisolak, 136–137 Cecchini, Toby, 109 Center for Constitutional Jurisprudence, 140 Chambless Enterprises v. Redfield, 143 Chan School of Public Health, 30–31

Chen, Joanne, 16 China, COVID–19 and, 34, 64–65 Christakis, Nicholas, 6, 36–39, 140 Christianity, 46, 51–53, 132, 142–143, 166–169 Chrysafis v. Marks, 143 Clarke, Lee, 28 climate change, 3–4, 6–9, 28–35, 62–68, 71–75, 83; as existential threat, 28–29; courts and: Agostinho v. Portugal, 66; Juliana v. United States, 66, 72; pandemics and, 30–33 closures, lawsuits and: 94, 97–99, 101–117, 133–142 Collier, Stephen, 60, 74–75, 117 conservative legal movement: Alliance Defending Freedom (ADF), 10, 52–54, 57, 128–129, 135–136, 168; Calvary Chapel v. Sisolak, 136–137; Citizens United v. FEC, 53; constitutional hardball, 138; Federalist Society, 52, 56, 129, 138, 142, 154; First Liberty Institute, 140; Freedom of Conscience Defense Fund, 54, 136; Institute for Justice, 53, 106, 147, 152–153; judicial appointments, 12, 19, 45–47, 50, 55–57, 138–139; Kelo v. New London, 153; LiMandri, Charles, 54, 136; Masterpiece Cakeshop v. Colorado Civil Rights Commission, 135–136; reproductive rights, 55–57, 139; South Bay United Pentecostal Church v. Newsom, 136–142; Terkel v. CDC, 143 Cornyn, John (Senator), 93–95, 104, 133 Coronavirus Aid, Relief, and Economic Security (CARES) Act, 107 COVID–19, early outbreaks in the United States: California, 147; Diamond Princess, 84, 123; Grand Princess, 84, 123; meatpacking plants, 91–93, 104, 132, 162–163; nursing homes, 6, 93–97, 99

212 Index critical disaster studies, 5–7; Horowitz, Andy, 26–27, 34–35; Remes, Jacob, 26–27, 34–35 Cuomo, Andrew (Governor, New York), 6, 93, 95–96, 139, 146–147 decarceration, 145–156; California, 147–156; National Association of Criminal Defense Lawyers et al. v. Newsom, 150; New York, 146–147; Team Roc, 151 Defense Production Act, 92 democratic backsliding, 45–50; American Legislative Exchange Council (ALEC) and, 49, 85–85; North Carolina, 49; Wisconsin, 43–46 Democratic Party: business interruption, 115–116; closures, 136–142; election litigation, 43–45; liability for illness, 120; workers compensation and, 121 DeSantis, Ron (Governor, Florida), 1, 40, 86, 95, 163 disaster cascades, 15–19; as engineering concept, 15–17; Bhopal, 21; complexity, 19–23, 38, 75; loose/tight coupling, 21–23; polycrisis, 18; social reproduction, 23–27 Durbin, Dick (Senator), 87–88 Eastman, John, 140 Elliott, Rebecca, 74–75, 117 Evers, Tony (Governor, Wisconsin), 43–45 Families First Coronavirus Relief Act (FFCRA), 1, 81, 105, 172 Fassin, Didier, 20, 162 First Amendment, 51, 99, 128, 141; free exercise of religion, 7, 10, 52–56; litigation, restrictions on gatherings, 133–142; Espinoza v. Montana Department of Revenue, 153; free speech, mask messages as, 128–129 First Liberty Institute, 140 Fisher Phillips, 86–88, 175, 177 Five Tribes (Cherokee, Chickasaw, Choctaw, Creek, Seminole), 110–112 Flavelle, Christopher, 15–17 Floyd, George, 128 Fourteenth Amendment, 153–154, 182n6; due process clause, 131; privileges or immunities clause, 152–157; Gurrola v. Duncan, 153–155, 160, 165; Justice Clarence Thomas, 154–155 Fuller, Thomas, 15–17

Gadarian, Shana Kushner, 4, 10, 126 Galanter, Marc, 72 Ginsburg, Ruth Bader (Justice), 45, 138 Ginsburg, Tom, 47, 49, 50 Global Health Security Index (GHSI), 30; climate change and, 74 Goodman, Sara Wallace, 4, 10, 126 Gorsuch, Neil (Justice), 56, 137–138, 141, 144 Greenberg, Michael, 21, 22 Grumbach, Jacob, 4, 46–50 Guatemala, 1, 3 Gurrola v. Duncan, 153–155, 160, 165 Hacker, Jacob, 41, 50, 84–85 Harlan, Justice John Marshall, 131, 137 Hertel–Fernandez, Alexander, 2, 4, 10, 39, 49, 52, 85–86 Higgins, Maeve, 66 Hollis–Brusky, Amanda, 4, 10, 153–155 “holy grail,” 63, 66–68, 79–82 Hope, Max, 18–19 Horowitz, Andy, 26–27, 34–357 Hotez, Peter, 30, 35–37 Hunton Andrews Kurth, 88, 101–103, 106, 175–176 Huq, Aziz, 47, 49–50 Hussain, Nasser, 20 Institute for Justice, 53, 147–155 insurance; as climate change governance, 116–117; business interruption, 116; Cecchini, Toby, 109; physical loss or damage, 108, 111–115; flood, 116–117; Wall Street Journal, 114 Jacobson v. Massachusetts, 131, 137, 171 Juliana v. United States, 99 justice cascade, 77–80 Kavanaugh, Brett (Justice), 56, 137, 143 Kelo v. New London, 153 Kennedy, Anthony (Justice), 56 Klein, Naomi, 19–20, 39 Koch, Charles and David, 52–53 lawsuits and social change; cascades, 77–80; constitutive, 72–75; “holy grail,” 63, 66–68, 79–82; instrumental, 54, 64–69 legal mobilization, 9 Lehigh Valley Baseball, LP v. Phila. Indem. Ins. Co., 112–113, 182n5

Index 213 Lehtonen, Turo-Kimmo, 74–75 Levitsky, Stephen, 46–47, 148 Lewis, Michael, 35, 40 liability protection: American Legislative Exchange Council (ALEC), 52–57, 85–87; Cornyn John (Senator), 93–95, 104, 133; Heritage Foundation, 85; DeSantis, Ron (Governor), 1, 40, 86; McConnell, Mitch (Senator), 92–93, 98, 104–105, 107, 133, 161, 163; state legislation, 120 Liss-Riordan, Stephanie, 128 litigation: against China (Missouri attorney general), 64–67, 73; civil rights (general), 102, 106; climate change (environmental); Juliana v. United States, 99; Milieudefensie v. Royal Dutch Shell, 91; closures, 98, 106, 134–143, 181n3; consumer complaints, 102, 122–125; election procedures, 48; employment, 102, 105, 106; habeas corpus, 102, 146–147; insurance, business interruption, 110–113, 116; liability for illness, 94–96, 103 litigation trackers, 48, 101–103, 113–114, 175–176 mail-in ballots, 43–48, 106 Mason, Liliana, 4, 50–51, 53, 56, 58 mass incarceration, 11–14, 145–146, 148 Masterpiece Cakeshop v. Colorado Civil Rights Commission, 135–136 McConnell, Mitch (Senator), 56, 92–93, 98, 104–105, 107, 138, 161, 163 McGirt v. Oklahoma, 110 Missouri, 30, 64, 91–92 morals, 78, 107, 125, 160; markets and, 10 National Association for the Advancement of Colored People (NAACP) Legal Defense and Education Fund, 53 National Association of Criminal Defense Lawyers et al. v. Newsom, 150 National Conference of State Legislatures (NCSL), 86, 116, 119–120 National Flood Insurance Program (NFIP), 117 Native American Sovereignty, 110; McGirt v. Oklahoma, 110 Newsom, Gavin (Governor, California), 142, 149–152; decarceration and, 147–156 nonpharmaceutical interventions (NPI), 34 North Carolina, 49, 124 Our Children’s Trust, 66, 72–73

Pachirat, Timothy, 92, 161–163 Paycheck Protection Program (PPP), 107–108 Pennsylvania, multidistrict litigation and, 114 People United for Separation of Church and State, 140 Pepinsky, Thomas B., 4, 10, 126 Perrow, Charles, 21–23, 37–38, 75–76; loose/tight coupling, 21–23, 42 Pierson, Paul, 41, 50, 84–85 polarization, social, 4, 51, 125–126 police power, 130–131, 157 practice tracing, 147 Prison Law Office, 150 process tracing, 149 property rights, 102, 143–144, 153 Rechtman, Richard, 162 Remes, Jacob, 5–7, 17, 24–27, 34–35 reproductive rights, 55–57, 139, 182n6 Republican Party: democratic backsliding, 49, 55; judicial appointments, 55–57, 138; liability limits, 91–93, 120, 133; mail-in ballots, 43–48 Robinson, Kim Stanley, 66–67 Roman Catholic Diocese of Brooklyn, NY v. Cuomo, 137–143 Rosenberg, Gerald, 54–55 Sabin Center for Climate Change Law, 67 SARS (2003), 113 Scism, Leslie, 108, 114 shadow docket, 44, 57–58 Sharp v. Murphy, 110 Shurchkov, Olga, 25 Sikkink, Kathryn, 77–79 Slaughterhouse Cases, 153–155 South Bay United Pentecostal Church v. Newsom, 136–142 Southworth, Ann, 52–56 spillovers, 77–78 state of exception, 20; law in, 20, 44 Supreme Court of the United States: appointments to, 12, 19, 45–47, 55–57, 138–139, 142; free exercise of religion, 135–143, 163–167; reproductive rights, 55–57, 139, 182n6; shadow docket, 44, 57–58 Taleb, Nassim N., 28–29 Taylor, Breonna, 128 Team Roc, 151 Terkel v. CDC, 143 Texas, 27, 37, 182n2 Tooze, Adam, 18

214 Index Torres et al. v. Milusnic, 150 “troika,” conservative, 52, 168; Alliance for Prosperity, 52; American Legislative Exchange Council, 2, 48–49, 52–55, 85–86, 158–169; State Policy Network, 52, 140, 143, 152 Trump, Donald J. (President): COVID–19 management, 6, 31, 35–36, 40, 48, 89–92, 137; judicial appointments, 137–138, 141, 144, 167; trust, 33–36, 159, 166–168; expertise and, 3, 32–33, 140–141 Tufekci, Zeynep, 27, 29

Vanhala, Lisa, 7, 9, 63–69 passim, 72–74, 132 visibility, death and, 161–163 Vladeck, Richard, 57

vaccines: Jacobson v. Massachusetts, 131, 137, 171; Terkel v. CDC, 143

Ziblatt, Daniel, 46–47, 148 Ziegler, Mary, 53, 62, 139, 167

Willrich, Michael, 130–131, 137 Wilson, Joshua, 52–53, 153 Wisconsin, 43–46, 134–135 Wisconsin Legislature v. Palm, 134 workers’ compensation, 120–122 World Health Organization (WHO), 13, 43 worship (in person), 135–143, 163–167; state exemptions for, 139–140

ACKNOWLEDGMENTS

I

owe thanks to many for their help in bringing this book to the light of day. Robert Lockhart of University of Pennsylvania Press has encouraged me throughout, beginning with my writing him with some loosely drafted chapters and a query about whether he might be interested. He rapidly sent the manuscript out for review. I am indebted to the thoughtful reviewers he found. Their comments helped me to see what else had to happen and how to structure revisions. Bob suggested more “connective tissue,” a phrase that stuck with me as I revised what I found to be separately interesting bits that needed substantial help hanging together. Alex Gupta then ensured the manuscript could move forward. Noreen O’Connor-Abel led the manuscript through production. Nicole Balant copy edited with great care. I can only thank a small portion of the people who kept our world going in the pandemic and allowed me to work on this project. Maya Sterett stayed with me in the first five months of the pandemic, cooked us delicious dinners, and reflected with me on litigating in the pandemic. Hadar Aviram and Tom Baker both shared their research and data gathering with me. The law firm Hunton Andrews Kurth shared their data about cases filed in court in the first six months of the pandemic.  Adebola Daramola assisted with research, including contacting law firms, downloading news articles, and designing visualizations of cases filed. The Center for Social Science Scholarship at UMBC supported editing work. Matthew Hoffman offered valuable comments. Small business owners in Baltimore talked to me about getting recovery money, or not, and about their insurance companies. These discussions in the pandemic gave me the idea of including insurance litigation. Thanks go to Adrienne Edisis, Heather Grindle, Rosalind Holsey, Jennie Faber Schwartz, and Jonathan Schwartz for multiple conversations. Thanks also go to the vendors and musicians at Baltimore’s Waverly Farmers’ Market, who showed up every week. 

216 Acknowledgments

I am also blessed with friends and family who helped me move the project along. Jane L. Collins read early incoherent paragraphs that were more notes than a draft, and she encouraged me to persist. Bill and William Sterett shared their home and good company in summer 2021. Their dog Luna got me into the mountains for walks, which developed my thinking at least as much as sitting at the computer did. Lucy Salyer suggested I contact Audra Wolfe to keep me on track. As a result, Stacia Pelletier edited and encouraged me— twice. Elsa Lantz and Anna Thielen commented on an early draft. Bosco slept at my feet as I drafted the first version. Later, Honey demanded walks in our nearby park if I sat down at the computer in the morning before checking out the park and our park friends with her. Exercise classes in Baltimore’s beautiful Patterson Park also broke up computer time in the pandemic; thanks go to our instructor, Guy Cragwell, for keeping us moving, and my classmates for good company and shared complaints. Remote Wordle and New York Times Spelling Bee with friends and family opened and closed blurry pandemic days. The pandemic demonstrated how much we need each other for our lives to work. Each of these generous souls deserves credit for any merit in this book.