Constitutional Law Expert Hans von Spakovsky Discusses Major Supreme Court Battles, State of the Rule of Law in Wide-Ranging Interview

Kaitlin Housler
Hans Von Spakovsky

Constitutional law expert Hans von Spakovsky discussed pending Supreme Court cases, Second Amendment litigation, Department of Justice culture, and the role of amicus briefs during an exclusive interview Thursday with The Tennessee Star’s CEO and Editor-in-Chief Michael Patrick Leahy.

Spakovsky currently serves as a Senior Legal Fellow at the Edwin Meese III Institute for the Rule of Law within Advancing American Freedom and hosts a weekly podcast, The Court Adjourns, which features a recent episode featuring Buckeye Institute President Robert Alt.

“The Court Adjourns, a half-hour podcast. I do it once a week,” von Spakovsky said on Thursday’s edition of The Michael Patrick Leahy Show. He explained that Alt’s organization is pursuing legal challenges to a federal prohibition on home distillation of alcohol for personal consumption.

“They have two really interesting cases going on in which they’re challenging the federal law that says that you can’t distill your own alcohol at home just for your own consumption,” von Spakovsky added. “You can make wine and beer, but if you’d like to make your own bourbon, again, just for you and your family, there’s a federal law that says you can’t do it.”

According to von Spakovsky, the legal argument centers on constitutional limits on federal authority.

“They’re challenging that saying that the federal government doesn’t have the power under the Constitution to do that,” he said.

He also explained the title of the episode, referencing the 1958 film Thunder Road.

“The Thunder Road reference is to a 1950s movie starring Robert Mitchum about a Korean War vet who comes back and takes over his family’s moonshine business,” he said. “And of course, anybody who knows NASCAR knows that the first NASCAR drivers, the first cars that were used were the souped up cars folks used for transporting moonshine.”

Von Spakovsky said he and his colleagues are closely watching several significant Supreme Court cases.

“Like so many other people, we’re waiting for decisions from really important cases from the Supreme Court, all of which we’ve written about or actually filed amicus briefs in,” he said.

Among those cases is one involving birthright citizenship.

“I actually filed an amicus brief in that case saying that the Trump administration — the current government’s view of that is the correct one,” von Spakovsky said. “Which is that no, you are not a citizen if you’re simply born in the United States, and in particular, you are not a citizen if your parents are in this country illegally.”

He also pointed to pending Second Amendment litigation.

“One of them is out of Hawaii and in essence, Hawaii passed a law, if you can believe, that in essence bans folks with concealed carry permits from, I think it’s over 96% of the land throughout the entire Hawaii archipelago,” he said. “And it’s clearly just a law intended to restrict Second Amendment rights in the State of Hawaii.”

Another case involves laws governing biological males’ participation in women’s sports.

“This is the one that says that biological males cannot participate in women’s sports at the high school and college level. That affects a lot of different states who are trying to protect women,” von Spakovsky said.

During the interview, von Spakovsky explained the purpose and function of amicus curiae briefs.

“Amicus briefs are…called friend of the court briefs,” he said.

He explained that organizations and individuals not directly involved in a case may submit legal arguments for the Court’s consideration, and, he noted, effectiveness depends on offering unique perspectives.

“That is the key to an effective brief, one that’s gonna get read by the Supreme Court justices,” he said.

He also described efforts to coordinate legal advocacy.

“One of the jobs that we actually do at the Meese Institute, where I am now, is try to organize the entire conservative community to file amicus briefs in important cases,” he said.

Asked about the state of the rule of law in America, von Spakovsky said he remains “hopeful.”

“We have a problem in the federal courts down at the trial level and at some of the courts of appeal,” he said. “We have all these, what I call renegade or rogue judges, almost all of them exclusively appointed by Joe Biden or Barack Obama, who frankly don’t care about the Constitution or what the law is, and they keep issuing decisions that are just wrong and are clearly intended to get the ideological policy objective they want.”

However, he noted appellate courts have frequently reversed those decisions, saying, “Many of those most recent decisions … have been overturned at the court of appeals level, and they’ve been overturned at the Supreme Court level.”

He went on to argue that greater scrutiny should be applied to federal district court nominations.

“The same attention needs to be given to those federal district judgeships as to those higher courts,” he said.

Von Spakovsky also discussed the culture within the Department of Justice based on his experience there as a former career attorney in the Civil Rights Division from 2002 to 2005

“Anyone who thinks that the Justice Department is filled with all these nonpartisan objective lawyers are just wrong,” he said. “The career ranks when I was there were filled with left-wing liberal activists.”

He cited an inspector general report concerning hiring practices in the Civil Rights Division.

“For example, in the voting section, they only hired lawyers from five advocacy organizations, all on the left; the NAACP, the ACLU,” he said.

According to von Spakovsky, some career attorneys continued to pursue the objectives of those organizations after entering government service.

“Those career lawyers acted as if they were still members of the advocacy organizations where they worked. It’s just now they had the government’s power to achieve the goals of those organizations.”

Watch:

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Kaitlin Housler is a reporter at The Tennessee Star and The Star News Network. 

 

 

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