It is now beyond debate – or at least it should be – that we, the people of the United States, have been failed by the Trump administration and its conservative apologists in Congress in their response to the COVID-19 pandemic. They failed to put in place mechanisms for systematic testing and contact tracing. They failed to coordinate the efficient acquisition of essential medical equipment such as ventilators and personal protective equipment. They failed to provide for an orderly phase-down of non-essential economic activity. They failed to establish clear, enforceable safety standards protect consumers, workers, and their families engaged in essential economic activity. This stopped being a public health crisis a long time ago. The pandemic is now more fairly characterized as a crisis of government.
Fortunately, our democracy has a crucial safety valve that stands ever ready to kick in when our representatives fail to protect us: the civil courts. These courts offer a unique forum in which any one of us is empowered to provide directly for our own safety by holding to account those who have harmed us. The justice courts dispense goes well beyond compensating the victims of malfeasance; it also sends a loud signal to unscrupulous people or businesses to think twice before cheating or hurting people. We are all safer when an individual courageously enters through the courthouse doors.
Yet, the very people whose miserable response to the crisis made the role that courts play in our democracy so essential as we seek to recover are now trying to close off those courthouse doors to the American people. Senate Majority Leader Mitch McConnell, with the full backing of the Trump White House and corporate special interests, has drawn what he calls a “red line” on future relief legislation to mitigate the pandemic’s economic fallout: To even reach the floor of the Senate, this legislation must fully immunize corporations against claims from workers, customers, or their families that their unreasonably dangerous actions caused them to contract COVID-19. With this “get out of jail free” card in their back pocket, any scofflaw business that wants to eke out a few extra pennies of profit at the expense of exposing the public unnecessarily to this dangerous disease would be able to do so with impunity.
McConnell’s gambit isn’t new. Despite the democratic role that civil courts play – or perhaps because of a fear of that power – conservative lawmakers like him have waged a decades-long campaign to enfeeble the courts, either by shutting the courthouse doors to worthy claimants or by making sure that anyone who manages to slip through the door must then run a gauntlet of legal obstacles in their pursuit of simple justice. Despite McConnell’s claims, the COVID-19 pandemic doesn’t present a unique set of legal circumstances that warrants a tailored recalibration of how the courts work. Instead, his efforts to defeat corporate accountability in the wake of the pandemic are all of a piece; COVID-19 is merely the latest excuse to advance the same tired anti-people, anti-protection agenda.
The civil courts have long been recognized as one of the “great equalizers” in America. As long their doors remain open, anyone – regardless of race, gender, sexual orientation, or economic standing – can haul even the biggest of multinational corporations before a judge and jury and demand that they answer for any harms they have caused. And unlike our other democratic institutions, the crucial determinations of right and wrong are made by ordinary people – a jury of peers – rather than elected representatives. Thus, the decisions rendered in civil courts can truly be said to respect and reflect the common wisdom and lived experience of the people.
For the authors of our Constitution, this form of radical democracy in action was so critical that they enshrined it as the Seventh Amendment of the Bill of Rights. Even Alexis de Tocqueville – an authority that conservatives are fond of selectively citing whenever it happens to suit their needs – recognized the democratic value of the civil courts, writing “the jury, which is the most energetic means of making the people reign, is also the most efficacious means of teaching them to reign.”
Of course, when de Tocqueville was writing, his primary concern related to identifying institutional safeguards for protecting minority rights against oppressive government action – that is, against a tyranny of commission. Now, we face what amounts to a tyranny of omission – a government that has abdicated its fundamental responsibility of promoting the general welfare – with the result that we are all left at the mercy of harms that we cannot adequately protect ourselves against. Make no mistake, this form of tyranny is every bit as oppressive and hostile to individual freedom as any conventional autocracy.
This tyranny of omission is perhaps best exemplified by recent revelations that the Occupational Safety and Health Administration (OSHA) had a program in place for protecting health care workers from airborne infections like COVID-19, but the Trump administration quickly and unceremoniously dumped the program because it threatened its arbitrary campaign to roll back regulatory safeguards. The OSHA program would have created clear and enforceable standards for limiting worker exposure to airborne diseases, which not only would have protected those workers, but also enhanced our country’s ability to safely absorb the influx of infected patients when cases started to quickly ramp up. Had this rule been in place, there would have been significantly fewer deaths, and the economic turmoil from the COVID-19 pandemic would have been appreciably mitigated.
Looming ominously over the government’s failed response to the pandemic are questions of power – or at least its inequitable distribution in our society. Lack of economic and political power has seen the most polluting sectors of our nation’s economy become increasingly concentrated in so-called “sacrifice zones” that are disproportionately inhabited by the most marginalized members of our society, including the working poor and communities of color. It’s no surprise, then, that deaths from COVID-19, a disease that seems to be especially harmful to pollution-ravaged lungs, reflect these economic and racial disparities, as well.
Also no surprise is that when these disparities started to become clearer, the politically and economically powerful members of our society began in earnest their campaign to prioritize the economic recovery from the pandemic ahead of further limiting the disease’s spread. Or, as Adam Serwer put it, “Once the disproportionate impact of the epidemic was revealed to the American political and financial elite, many began to regard the rising death toll less as a national emergency than as an inconvenience.”
Put differently: Profit is more important than people – a perfect distillation of the entire Trump/McConnell agenda.
If an unequal distribution of economic and political power helped to get us into this mess, the only way we’ll be able to achieve a just resolution is by reallocating power to ordinary people, and especially those from systematically marginalized communities. The civil courts can only serve as a source of this kind of public empowerment, though, if lawmakers zealously guard against efforts like McConnell’s to close the courthouse doors to deserving claimants. But more can and should be done.
Lawmakers should also seek to strengthen citizen access to the courts. One obvious place to begin will be to bar corporate enforcement of “forced arbitration” clauses for claims arising from harms related to the COVID-19 pandemic. Whether they realize it or not, nearly everyone is subject to dozens of these clauses thanks to the various consumer or employment contracts they have entered into on a take-it-or-leave-it basis. The function of these clauses is to force you to bring any claims you might have related to these contracts in an alternative private forum known as arbitration, instead of the civil courts. Unlike courts, though, arbitration is heavily stacked against individuals, making it nearly impossible for even the most deserving claimants to achieve meaningful compensation for their injuries and to hold corporations accountable for their wrongdoing. Addressing these clauses will be particularly important for pandemic victims who were exposed while in nursing care facilities where the use of these clauses has become especially prevalent.
As long as conservative lawmakers continue to obstruct new policies that will affirmatively protect the public, it will remain incumbent upon members of the public to protect themselves by whatever means are available. Despite their shortcomings, the civil courts remain one of the best mechanisms for empowering the public quickly and effectively.