Attorneys in the case challenging the state law prohibiting mask requirements in public schools say the Arkansas Supreme Court has accelerated the timetable on a request by legislative leaders to block a lower court order that invalidated the law.
The Supreme Court Thursday accepted a request from legislators for an expanded brief in taking their motion for a stay. Attorneys for those challenging the law said they also set 10 a.m. Monday as the deadline for their response to legislators’ motion to stay Circuit Judge Tim Fox’s preliminary injunction blocking enforcement of the law/
That’s a short timeframe. It could mean a ruling next week on a request for a stay of Fox’s order pending a full trial. That would put the law back in place for an extended period and thus immediately contradict mask rules imposed by dozens of Arkansas school districts.
If it happens, it wouldn’t be the first time the Supreme Court has stepped in to block a lower court ruling in a way that puts a legislative action back in effect. The last occasion was an order prohibiting enforcement of a lower court ruling that held the state had illegally stopped federal pandemic unemployment legislation 10 weeks early. With the injunction set aside, millions in payments to thousands of Arkansans couldn’t go forward and the delay in hearing the case could make their claims moot as the federal program expires.
Such court actions are reminiscent of the “shadow docket” of the U.S. Supreme Court. Without hearing cases, the conservative-dominated U.S. Supreme Court has repeatedly stepped in to prevent lower court roadblocks to conservative agenda items, from actions of the Trump administration to the Texas abortion ban.
In checking the record of the mask case, I noticed letters from two justices disclosing potential conflicts that they said didn’t require them to recuse. One came from Justice Shawn Womack, who said his law clerk, Scout Snowden, worked for Sen. Trent Garner, sponsor of the law, during the legislative session during which it passed. He said Snowden would be “walled off” from the case. Justice Rhonda Wood disclosed that a family member works for the Friday Firm, which is representing the Little Rock School District in challenging the state law. She said her family member wasn’t working on this case.
Legislators want the act upheld. Governor Hutchinson has intervened to argue it unconstitutionally limited executive authority. Opponents of the law have also raised constitutional questions about the legislature’s ability to intervene against action taken in a health emergency.