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OPINION | JOHN BRUMMETT: Supremely sticky

by John Brummett | March 9, 2021 at 3:04 a.m.

Over the weekend Arkansas found itself with more vaccines than people in line to receive them.

So, on Monday morning, Gov. Asa Hutchinson authorized vaccine eligibility for all persons in the category that includes “essential government workers.”

Among the advantages was averting a lame excuse for constitutional conflict fomented by the Arkansas Supreme Court.

I’ll tell you about that now because the fortuitous mootness negates neither the affront nor the needed lesson that our government relies for proper functioning on reasonable people applying reasonable restraint.

The Arkansas Supreme Court is vitally the pre-eminent element of a powerfully co-equal branch of government with the governor and Legislature.

A brilliantly delicate system encompassing executive, legislative and judicial branches depends on persons capable of delicacy. Yet we’re stuck in Arkansas with delicacy-challenged individuals on our Supreme Court.

Legislatures make laws and spend money. Governors enact and execute those laws and expenditures. The judicial branch resting ultimate authority in the state Supreme Court may overrule any or all of that provided it receives cases that invoke what’s known as “judicial review” of laws made by legislative vote and executive signature.

But that doesn’t seem to be enough for our six associate justices and one chief justice, two to four of whom are believed to carry chips on their shoulders reflecting their resentment that they are not as esteemed as they ought to be.

Without any case on which to rule, this Supreme Court hauled off unilaterally last week and issued an order called a per curiam, meaning unanimously by the court. It presumed to order that judges and court personnel statewide—owing to the backlog of cases caused by the pandemic—could break in line and get vaccinations.

That’s a little like Hutchinson declaring that, in the case before the state Supreme Court of appellant Jones versus appellee Smith, he was deciding in favor of Jones and remanding the case to the circuit court for adherence to the terms of his reversal.

The governor lawfully executes the management of state government under, in the matter of the vaccination schedule, special emergency health-related powers granted by legislative action. By that authority, he and his relevant executive agencies declare which groups of people go first for vaccinations, and second, and third, and so forth.

Until Monday morning, he had not gotten around to public-facing court employees, who were appropriately lumped in Category 1B with other public-facing government workers.

Vaccines had been limited. Widely accepted reason prioritized older people, vulnerable people and front-line workers.

It’s urgent that courts reopen to dig into the backlog. Justice delayed is justice denied, they say, and that’s true.

But it’s not the very tip-top consideration when you’re getting only dribbles of vaccines and assessing the degree of necessity of public services and prioritizing protections for the most vulnerable.

Hutchinson issued a statement last week saying he appreciated the high court’s concern for judges, prosecutors and court personnel, and shared that concern, and that he expected to accelerate vaccinations soon to that group and others with the increased production and distribution.

In other words, he said no to the immediate effectiveness of this odd order getting in his business from the Supreme Court.

That posed an altogether sticky situation. You didn’t want your Supreme Court unilaterally decreeing executive actions overlapping the governor’s power. You didn’t want your governor to be in a position of ignoring a Supreme Court order.

You didn’t want court bailiff Joe Jones going over to the vaccination clinic and flashing the order from the Supreme Court and saying “gimme my shot or I’ll sic Chief Justice Dan Kemp on you, or, better yet, one of those meaner associate justices.”

You’d expect Supreme Court justices to be concerned about the backlog of cases statewide. You’d like their chief, Kemp, to respect the governor’s exclusive executive power. You’d like him to call over to the governor and ask for inclusion of at least some court personnel in active vaccination groups.

You’d prefer, if the governor had said not yet, that the court issue a news release through the Administrative Office of the Courts declaring the need for these vaccinations and publicly seeking the governor’s kind reconsideration and quick action.

But, no, what we got for about 72 hours was chip-on-shoulder justices putting out an order saying that, never mind any governor, the word “supreme” means what it says and they were going all Diana Ross diva with a rendition of “Come See about Me.”

It all worked out. The governor says he responded to the new dynamic of a vaccine surplus, not the Supreme Court. The justices can choose to think otherwise if that makes them feel mighty.

More broadly, the message is that it’s great news—if people will do the right thing and get vaccinated—that we need more arms to match our loaded needles.

CORRECTION: An earlier version of this column was published in error.


John Brummett, whose column appears regularly in the Arkansas Democrat-Gazette, is a member of the Arkansas Writers' Hall of Fame. Email him at [email protected] Read his @johnbrummett Twitter feed.

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