August 5, 2025 • 16 mins
Hans is an expert with the Heritage Foundation. We have him on to talk about the court system, the U.S. Constitution, federal election law, and more. In this visit we asked about the most consequential recent rulings by the SCOTUS, upcoming cases, and something called the "shadow docket."
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Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:03):
Time for the third hour of the Morning Show with
Preston Scott creeping along. Here was Show five thousand, four
hundred and twenty four. He's Jose, I'm Preston, and joining
me is the manager the Election Law Reform Initiative and
senior legal fellow at the Edwin Meses, the Third Center
(00:23):
for Legal and Judicial Studies. He's our friend, Hans von Spakowski. Hans,
how are you, sir, Preston.
Speaker 2 (00:30):
I'm doing just great and join my summer so far
it's been a hot, hot time in Washington all summer, boy,
no kidding.
Speaker 1 (00:39):
I'm curious when the Supreme Court finished and basically got
everything done for the month of June, got its rulings
out there, and you step back from it a little
bit and you look at you know, rulings came out
long before June when they normally roll out. What do
you think We're the most consequential rulings of the first
(01:00):
first half of the year by the United States Supreme Court.
Speaker 2 (01:06):
I think it was a very good session for Americans
who believe in the rule of law of the Constitution.
I mean just talking and frankly, if folks who want
to protect their children, I mean, look, two of the
most important decisions that came out were the scrematic case,
which was out of Tennessee, in which the Supreme Court
(01:29):
said that a law that Tennessee passed along with i
think almost two dozen other states, saying you cannot surgically
mutilate and do abusive drug treatments to children to supposedly
changed their gender, that that was perfectly acceptable and within
(01:50):
the power of state government. That's a decision protecting kids
all over the country. And then in the other one
similar one was a decision out of Maryland in which
are probably the most liberal school board in a country
had integrated basically transsexual and gay propaganda into the entire
(02:15):
curriculum and told the parents, you can't opt your kids
out of this. We're not going to allow that. And
the Supreme Court said you cannot do that. You cannot
basically infuse sexual propaganda into kids. And we're not talking
about high school kids. They were doing this all the
(02:35):
way down to pre kindergarten kit. I think those I
think those two in terms of protecting Americans in the family,
were probably the two most important decisions they made.
Speaker 1 (02:46):
One of the things that we've paid attention to on
this show is obviously district court rulings that created nationwide injunctions,
which which on the surface just seemed obset or to
even people that are not invested in the law as
a profession or even as a hobby, for Pete's sake,
But the Supreme Court ruled on it. Yet we still
(03:10):
see judges saying, ah, that doesn't apply to me. So
what first tell us the status of things like that?
When we still see district courts creating nationwide injunctions?
Speaker 3 (03:22):
What? What is a court? What's the Supreme Court to do?
What are we to do? Well?
Speaker 2 (03:27):
The mistake that they made, and it was a huge mistake,
and it was pointed out by Justice Alito. You know,
the Supreme Court came out six to three and said
universal or nationwide injunctions are outside the authority of federal courts. Uh,
there's one exception of that, and Justice Alito said, well,
(03:51):
we've ruled correctly, but we have failed to deal with
that exception. The exception is if a judge determines that
a particular group of plaintiffs are a class, that they
represent an entire class of people across the United States. Now,
there are very strict rules that a judge is supposed
(04:16):
to follow before he does that. But because the Supreme
Court didn't talk about that, didn't emphasize that, what happened
was that all these same judges now have been saying, oh, okay, well,
all I have to do is certify these plaintiffs as
a class and boom, I can issue a nationwide injunction.
(04:39):
And they've been doing it willy nilly without actually following
the rules. That's not going to stop until the Supreme
Court takes up this matter again.
Speaker 3 (04:50):
He's smarter than we are.
Speaker 1 (04:53):
That's my best way of introducing for our second segment here,
Hans von Spakowski with a heritage foundation. Aren't we treading
on dangerous territory when courts seem to be just ignoring
what the High Court says and that's what it appears?
Speaker 2 (05:14):
Oh oh absolutely, yes? Uh what what we're what we're
seeing as a judicial rebellion and judicial tyranny. The best
example of that is the judge in Massachusetts who recently,
after after the big Beautiful Bill was passed by Congress,
(05:36):
signed in the law by the President, and you have
a federal judge in Massachusetts saying, oh no, you can't
you can't reduce or cut off money to planned parenthood.
You can't do that, mister President. You have to keep
funding them. Congress, No, you have to keep providing them
with money. How in the world is a federal dis
(05:59):
court judge thinking that she's got the power to override
the constitutional authority of Congress to decide how to spend
taxpayer money. Now, fortunately, the Supreme Court recently stepped in
and issued an emergency stay or suspension of her order.
(06:21):
But the fact that you have a judge like that
in the federal court system is illustrative of the problem
we have unfortunately throughout the judiciary branch and President you
know the reason for this. The reason for this is
that Joe Biden, and this is a Biden judge, Joe
Biden appointed to the federal judiciary, and Chuck Schumer got confirmed,
(06:47):
the most left wing, radical ideologues that have ever sat
on the federal bench in the entire history of the
United States.
Speaker 3 (06:58):
So what's the country to do about it?
Speaker 2 (07:02):
Well, the only thing that can be done is to
make sure that Donald Trump gets his judges confirmed, and
in particular gets them confirmed into open Court of Appeals
slots so they can frankly overrule these nutty judges, and
(07:23):
we have got to maintain the majority on the Supreme Court.
And listen. Another great example of this is just within
the last day or two the US Court of Appeals
for the Fifth Circuit, that's a great court. They cover
Texas just throughout a absolutely nutty decision, again by a
(07:43):
federal district court judge who had said that the law
that Texas passed, which said, hey, if you're going to
vote by absentee ballot, you've got to provide a copy
of either your ID or your driver's license number or
the last word, he said, oh, you can't do that,
that's discriminatory. Well, fortunately the Fifth Circuit just threw that
(08:07):
out and said, of course, it's not discriminatory, and it's
it's it's a way for the state to make sure
that the person getting the idea is actually the registered voter.
Speaker 1 (08:18):
Hanswatzpakowski with us from the Heritage Foundation. We're talking about
the US Supreme Court, in the federal court system in general, Hans,
is there any provision that and I'm going to put
this in really simplistic terms, when a district judge is
overruled multiple times that their judicial qualifications and come into question,
and they can be removed from office, from the from
(08:40):
the court.
Speaker 2 (08:41):
Unfortunately, not so. The only way a federal judge can
be removed is if he is impeached. And in the
entire history of the US about a dozen federal judges
have been impeached, but almost always it's spin for things
like bry and really serious crimes. Just being a bad
(09:06):
judge who issues bad decisions, unfortunately, is not sufficient to
get you impeached.
Speaker 1 (09:13):
WFLA on your phone with the iHeart radio app and
on hundreds of devices like Alexa, Google Home, Xbox and Sonos, Yes,
and Ihearts radio station.
Speaker 3 (09:29):
He is a Turn two guest.
Speaker 1 (09:31):
We turned to Hans von Spakowsky to try to better
understand what's going on with a lot of different issues,
but notably in this visit the Supreme Court of the
United States, And Hans, what are a couple of cases
two or three that stand out that you think are
very consequential in the upcoming fall winter term. Are they
dealing with men in women's spaces? Are they dealing with elections?
(09:52):
What are we talking about?
Speaker 2 (09:55):
Yeah? I think probably the most important case cases that
the Spring Court accept to were cases out of Idaho
and out of West Virginia. Those states, just like a
lot of states, past laws saying that if you're a
biological male, no matter what kind of drugs you're taking,
(10:17):
you cannot participate in women's sports. And unfortunately you had
federal courts, the Ninth Circuit Court of Appeals for Circuit
Court of Appeals, which is two of the worst courts
of appeal in the country, say that those laws violate
equal protection. So hopefully the Supreme Court is going to
come out and uphold states not allowing biological men and
(10:42):
women for participating women's sports. Very very important case. There's
also a big case coming up on redistricting, as you know,
as a big issue right now in Texas, and they
have a case out of Louise, Siana in which white
(11:03):
voters actually sued and said when the state legislature drew
up a second black district, a district which black voters
are majority, they impermissively and unconstitutionally used race as their
(11:25):
primary factor in doing that. That is racial discrimination and
it's unconstitutional. And that's a really important case because, as
you know, that's a big issue going on right right
now in Texas. So that that that could have all
kinds of effects. And then and then finally there's a
(11:46):
campaign finance case really involving the First Amendment, in which
the political parties are saying, the federal law that limits
the amount of money we can spend to support our
candidates and coordination with them violates our First Amendment rights. Again,
(12:07):
I think that's a very important case when it comes
to political association rights in the First Amendment.
Speaker 1 (12:14):
Let me tie on to that. What about the case
involving ballot counting after an election?
Speaker 2 (12:19):
Ah, well, the problem there is is that they didn't
take that case on the substantive issue simply on standing.
What we're talking about is in Illinois, a member of
Congress sued saying, hey, the fact that Illinois has a
state law that allows ABSENTI bollos to come in after
election day and be counted violates the federal law that
(12:44):
sets the day for federal elections, as you know, the
first Tuesday after the first Monday November. He if the
courts there said, oh, you don't have standing to sue.
You can't even bring a claim. And you know my
reaction to that is if a candidate can't bring a claim, well,
(13:05):
who the heck can So what the Supreme Court accepted
was just the standing issue. I think what they're going
to do is simply say, well, of course a candidate
has standing. Then they'll send it back down to the
federal courts. Well, they will then look at the substantive issue.
Do those kind of laws, the ones that allow ballots
to come in after election ate, do they violate federal law?
(13:29):
The Fifth Circuit Court of Appeals miss has already said
that that is a violation of the law. Are they
through out a Mississippi law that allowed that?
Speaker 1 (13:41):
Boy, it's going to be interesting because I remember going
back to I think it was Texas that the Court
said did not have standing to challenge the results of
twenty twenty, wasn't it. Yeah, that's right, And in fact
I think the argument is, well, sure it does because
it's one of the states in the Union. It has
standing for no other reason. Tell me about what is
(14:03):
a what is shadow What is a shadow docket?
Speaker 3 (14:05):
What is that? And why is it good or bad?
Speaker 2 (14:10):
Well, the shadow docket is simply when UH an emergency
appeal is filed with Supreme Court to usually and this
is what's been happening over the past couple months to
stop a lower court decision. Uh, and they're not talking
about the substantive issue, like the case that I was
(14:33):
talking about with the Massachusetts judge saying, oh, you know,
you can't cut off funding for Planned Parenthood. She issued
an injunction saying you've got to continue payment to plan
Parenthood while we have the trial and while this case
is going forward. The emergency docket, the shadow docket, was
(14:54):
the Supreme Court stepping in and saying no, no injunction
while this court case is pending. So it will go
through the lower court, it'll go through the Court of Appeals,
it'll finally get to the Supreme Court. Well, they'll decide substantively,
you know, whether Planned Parenthood funding has to continue. But
(15:15):
while that's going on, there will be no injunction in place.
And I think there's not a problem with the Supreme
Court stepping in through this shadow dock and stopping these
lower courts from doing things they're not authorized to do
while a case is pending before them.
Speaker 3 (15:32):
Nice. Thank you for that explanation. It helps a lot.
Speaker 1 (15:37):
Hans is always thank you for carbon time for us,
and we appreciate it.
Speaker 2 (15:41):
Sure thing anytime.
Speaker 1 (15:42):
Thank you Hans von Spakowski with us from the Heritage Foundation,
and now we know more about what has been, what
is happening, and what will be coming in the fall
Winner term. We're going to go over nine specific cases
in the coming days that are in the fall Winner term,
just a quick overview of what's coming. We just touched
(16:03):
on two or three of them there, but there's more
and we'll get to all of them in the coming
days here on The Morning Show with Preston Scott
Time for the third hour of the Morning Show with
Preston Scott creeping along. Here was Show five thousand, four
hundred and twenty four. He's Jose, I'm Preston, and joining
me is the manager the Election Law Reform Initiative and
senior legal fellow at the Edwin Meses, the Third Center
(00:23):
for Legal and Judicial Studies. He's our friend, Hans von Spakowski. Hans,
how are you, sir, Preston.
Speaker 2 (00:30):
I'm doing just great and join my summer so far
it's been a hot, hot time in Washington all summer, boy,
no kidding.
Speaker 1 (00:39):
I'm curious when the Supreme Court finished and basically got
everything done for the month of June, got its rulings
out there, and you step back from it a little
bit and you look at you know, rulings came out
long before June when they normally roll out. What do
you think We're the most consequential rulings of the first
(01:00):
first half of the year by the United States Supreme Court.
Speaker 2 (01:06):
I think it was a very good session for Americans
who believe in the rule of law of the Constitution.
I mean just talking and frankly, if folks who want
to protect their children, I mean, look, two of the
most important decisions that came out were the scrematic case,
which was out of Tennessee, in which the Supreme Court
(01:29):
said that a law that Tennessee passed along with i
think almost two dozen other states, saying you cannot surgically
mutilate and do abusive drug treatments to children to supposedly
changed their gender, that that was perfectly acceptable and within
(01:50):
the power of state government. That's a decision protecting kids
all over the country. And then in the other one
similar one was a decision out of Maryland in which
are probably the most liberal school board in a country
had integrated basically transsexual and gay propaganda into the entire
(02:15):
curriculum and told the parents, you can't opt your kids
out of this. We're not going to allow that. And
the Supreme Court said you cannot do that. You cannot
basically infuse sexual propaganda into kids. And we're not talking
about high school kids. They were doing this all the
(02:35):
way down to pre kindergarten kit. I think those I
think those two in terms of protecting Americans in the family,
were probably the two most important decisions they made.
Speaker 1 (02:46):
One of the things that we've paid attention to on
this show is obviously district court rulings that created nationwide injunctions,
which which on the surface just seemed obset or to
even people that are not invested in the law as
a profession or even as a hobby, for Pete's sake,
But the Supreme Court ruled on it. Yet we still
(03:10):
see judges saying, ah, that doesn't apply to me. So
what first tell us the status of things like that?
When we still see district courts creating nationwide injunctions?
Speaker 3 (03:22):
What? What is a court? What's the Supreme Court to do?
What are we to do? Well?
Speaker 2 (03:27):
The mistake that they made, and it was a huge mistake,
and it was pointed out by Justice Alito. You know,
the Supreme Court came out six to three and said
universal or nationwide injunctions are outside the authority of federal courts. Uh,
there's one exception of that, and Justice Alito said, well,
(03:51):
we've ruled correctly, but we have failed to deal with
that exception. The exception is if a judge determines that
a particular group of plaintiffs are a class, that they
represent an entire class of people across the United States. Now,
there are very strict rules that a judge is supposed
(04:16):
to follow before he does that. But because the Supreme
Court didn't talk about that, didn't emphasize that, what happened
was that all these same judges now have been saying, oh, okay, well,
all I have to do is certify these plaintiffs as
a class and boom, I can issue a nationwide injunction.
(04:39):
And they've been doing it willy nilly without actually following
the rules. That's not going to stop until the Supreme
Court takes up this matter again.
Speaker 3 (04:50):
He's smarter than we are.
Speaker 1 (04:53):
That's my best way of introducing for our second segment here,
Hans von Spakowski with a heritage foundation. Aren't we treading
on dangerous territory when courts seem to be just ignoring
what the High Court says and that's what it appears?
Speaker 2 (05:14):
Oh oh absolutely, yes? Uh what what we're what we're
seeing as a judicial rebellion and judicial tyranny. The best
example of that is the judge in Massachusetts who recently,
after after the big Beautiful Bill was passed by Congress,
(05:36):
signed in the law by the President, and you have
a federal judge in Massachusetts saying, oh no, you can't
you can't reduce or cut off money to planned parenthood.
You can't do that, mister President. You have to keep
funding them. Congress, No, you have to keep providing them
with money. How in the world is a federal dis
(05:59):
court judge thinking that she's got the power to override
the constitutional authority of Congress to decide how to spend
taxpayer money. Now, fortunately, the Supreme Court recently stepped in
and issued an emergency stay or suspension of her order.
(06:21):
But the fact that you have a judge like that
in the federal court system is illustrative of the problem
we have unfortunately throughout the judiciary branch and President you
know the reason for this. The reason for this is
that Joe Biden, and this is a Biden judge, Joe
Biden appointed to the federal judiciary, and Chuck Schumer got confirmed,
(06:47):
the most left wing, radical ideologues that have ever sat
on the federal bench in the entire history of the
United States.
Speaker 3 (06:58):
So what's the country to do about it?
Speaker 2 (07:02):
Well, the only thing that can be done is to
make sure that Donald Trump gets his judges confirmed, and
in particular gets them confirmed into open Court of Appeals
slots so they can frankly overrule these nutty judges, and
(07:23):
we have got to maintain the majority on the Supreme Court.
And listen. Another great example of this is just within
the last day or two the US Court of Appeals
for the Fifth Circuit, that's a great court. They cover
Texas just throughout a absolutely nutty decision, again by a
(07:43):
federal district court judge who had said that the law
that Texas passed, which said, hey, if you're going to
vote by absentee ballot, you've got to provide a copy
of either your ID or your driver's license number or
the last word, he said, oh, you can't do that,
that's discriminatory. Well, fortunately the Fifth Circuit just threw that
(08:07):
out and said, of course, it's not discriminatory, and it's
it's it's a way for the state to make sure
that the person getting the idea is actually the registered voter.
Speaker 1 (08:18):
Hanswatzpakowski with us from the Heritage Foundation. We're talking about
the US Supreme Court, in the federal court system in general, Hans,
is there any provision that and I'm going to put
this in really simplistic terms, when a district judge is
overruled multiple times that their judicial qualifications and come into question,
and they can be removed from office, from the from
(08:40):
the court.
Speaker 2 (08:41):
Unfortunately, not so. The only way a federal judge can
be removed is if he is impeached. And in the
entire history of the US about a dozen federal judges
have been impeached, but almost always it's spin for things
like bry and really serious crimes. Just being a bad
(09:06):
judge who issues bad decisions, unfortunately, is not sufficient to
get you impeached.
Speaker 1 (09:13):
WFLA on your phone with the iHeart radio app and
on hundreds of devices like Alexa, Google Home, Xbox and Sonos, Yes,
and Ihearts radio station.
Speaker 3 (09:29):
He is a Turn two guest.
Speaker 1 (09:31):
We turned to Hans von Spakowsky to try to better
understand what's going on with a lot of different issues,
but notably in this visit the Supreme Court of the
United States, And Hans, what are a couple of cases
two or three that stand out that you think are
very consequential in the upcoming fall winter term. Are they
dealing with men in women's spaces? Are they dealing with elections?
(09:52):
What are we talking about?
Speaker 2 (09:55):
Yeah? I think probably the most important case cases that
the Spring Court accept to were cases out of Idaho
and out of West Virginia. Those states, just like a
lot of states, past laws saying that if you're a
biological male, no matter what kind of drugs you're taking,
(10:17):
you cannot participate in women's sports. And unfortunately you had
federal courts, the Ninth Circuit Court of Appeals for Circuit
Court of Appeals, which is two of the worst courts
of appeal in the country, say that those laws violate
equal protection. So hopefully the Supreme Court is going to
come out and uphold states not allowing biological men and
(10:42):
women for participating women's sports. Very very important case. There's
also a big case coming up on redistricting, as you know,
as a big issue right now in Texas, and they
have a case out of Louise, Siana in which white
(11:03):
voters actually sued and said when the state legislature drew
up a second black district, a district which black voters
are majority, they impermissively and unconstitutionally used race as their
(11:25):
primary factor in doing that. That is racial discrimination and
it's unconstitutional. And that's a really important case because, as
you know, that's a big issue going on right right
now in Texas. So that that that could have all
kinds of effects. And then and then finally there's a
(11:46):
campaign finance case really involving the First Amendment, in which
the political parties are saying, the federal law that limits
the amount of money we can spend to support our
candidates and coordination with them violates our First Amendment rights. Again,
(12:07):
I think that's a very important case when it comes
to political association rights in the First Amendment.
Speaker 1 (12:14):
Let me tie on to that. What about the case
involving ballot counting after an election?
Speaker 2 (12:19):
Ah, well, the problem there is is that they didn't
take that case on the substantive issue simply on standing.
What we're talking about is in Illinois, a member of
Congress sued saying, hey, the fact that Illinois has a
state law that allows ABSENTI bollos to come in after
election day and be counted violates the federal law that
(12:44):
sets the day for federal elections, as you know, the
first Tuesday after the first Monday November. He if the
courts there said, oh, you don't have standing to sue.
You can't even bring a claim. And you know my
reaction to that is if a candidate can't bring a claim, well,
(13:05):
who the heck can So what the Supreme Court accepted
was just the standing issue. I think what they're going
to do is simply say, well, of course a candidate
has standing. Then they'll send it back down to the
federal courts. Well, they will then look at the substantive issue.
Do those kind of laws, the ones that allow ballots
to come in after election ate, do they violate federal law?
(13:29):
The Fifth Circuit Court of Appeals miss has already said
that that is a violation of the law. Are they
through out a Mississippi law that allowed that?
Speaker 1 (13:41):
Boy, it's going to be interesting because I remember going
back to I think it was Texas that the Court
said did not have standing to challenge the results of
twenty twenty, wasn't it. Yeah, that's right, And in fact
I think the argument is, well, sure it does because
it's one of the states in the Union. It has
standing for no other reason. Tell me about what is
(14:03):
a what is shadow What is a shadow docket?
Speaker 3 (14:05):
What is that? And why is it good or bad?
Speaker 2 (14:10):
Well, the shadow docket is simply when UH an emergency
appeal is filed with Supreme Court to usually and this
is what's been happening over the past couple months to
stop a lower court decision. Uh, and they're not talking
about the substantive issue, like the case that I was
(14:33):
talking about with the Massachusetts judge saying, oh, you know,
you can't cut off funding for Planned Parenthood. She issued
an injunction saying you've got to continue payment to plan
Parenthood while we have the trial and while this case
is going forward. The emergency docket, the shadow docket, was
(14:54):
the Supreme Court stepping in and saying no, no injunction
while this court case is pending. So it will go
through the lower court, it'll go through the Court of Appeals,
it'll finally get to the Supreme Court. Well, they'll decide substantively,
you know, whether Planned Parenthood funding has to continue. But
(15:15):
while that's going on, there will be no injunction in place.
And I think there's not a problem with the Supreme
Court stepping in through this shadow dock and stopping these
lower courts from doing things they're not authorized to do
while a case is pending before them.
Speaker 3 (15:32):
Nice. Thank you for that explanation. It helps a lot.
Speaker 1 (15:37):
Hans is always thank you for carbon time for us,
and we appreciate it.
Speaker 2 (15:41):
Sure thing anytime.
Speaker 1 (15:42):
Thank you Hans von Spakowski with us from the Heritage Foundation,
and now we know more about what has been, what
is happening, and what will be coming in the fall
Winner term. We're going to go over nine specific cases
in the coming days that are in the fall Winner term,
just a quick overview of what's coming. We just touched
(16:03):
on two or three of them there, but there's more
and we'll get to all of them in the coming
days here on The Morning Show with Preston Scott
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