Advisory Opinions - SCOTUS Majority Rules White House Ballroom Is A Go

Episode Date: September 3, 2026

Sarah Isgur and David French discuss the 5-4 ballroom interim docket decision with Chief Justice John Roberts leading the dissenters, the New York Times with a piece on releasing the justice’s papers sooner rather than later, and a piece by Josh Morrow on AI in circuit decisions. And speaking of circuit decisions, Sarah and David discuss a few, including the Vacancies Reform Act and the 26th Amendment.  The Agenda: –Goodbye East Wing –Lujan v. Defenders of Wildlife –Will Baude on esthetic injuries –Should the justices release their papers sooner? –Should this actually be happening –South Carolina’s voting law is unconstitutional –Update on Vacancies Reform Act Show Notes: –David Lat’s Substack Order Sarah’s book here. Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including access to all of our articles, members-only newsletters, and bonus podcast episodes—click here. If you’d like to remove all ads from your podcast experience, consider becoming a premium Dispatch member by clicking here. Learn more about your ad choices. Visit megaphone.fm/adchoices

Ready? I was born ready. Welcome to advisory opinions. I'm Sarah Isker. That's David French. And today we are going to discuss the ballroom interim docket decision, 5-4 with the Chief Justice leading the dissenters down the field as they talk about crocodiles and otherwise.

We also want to talk about the justices papers, the New York Times, coming out with a long-form piece on basically advocating for releasing those papers sooner rather than later, as well as a piece by Josh Morrow on AI in circuit decisions. Yikes. And we've got some circuit decisions of our own, including the Vacancies Reform Act and the 26th Amendment. But Sarah, before we really dive in, can we just give a public thank you to the Supreme Court? We're in the dog days of the summer. Normally, it's harder to figure out like good stuff to talk about. Thankfully, we've had some good circuit court cases and they just give us. They just give us a ballroom

decision that we can chew on for a good part of this podcast, and we know they did that for us. Thank you very much. We appreciate it. And also, don't forget, registration is open for the SCOTUS Blog Summit, 2026 term preview, happening September 16th at the Johns Hopkins University Bloomberg Center in Washington, D.C. We've got Senator Dick Durbin, Representative Darrell Issa, former Solicitor General Elizabeth Prelager. and we'll have a live advisory opinions, term preview, as well as a post-event cocktail reception.

We hope you will check out the website over at Scotus Blog and come join us. Let's get into it. Two and five Canadians will hear the words you have cancer. That's why every step and dollar raised matters. On September 19th, join thousands in Toronto for the Princess Margaret Cancer Foundation walk. Challenge yourself, friends and family. to walk 21 kilometers in support of life-saving research. Together, we can carry the fire and help create a world free from the fear of cancer.

Register today at pmcf walk.ca.ca. You gotta try breakfast. And what better way than with a delicious pre-organic coffee? Starting with just $1 all day, every day now until December 31st. You gotta try breakfast. at participating A&W locations in Ontario. All right, David, let's start with crocodiles, where every advisory opinions episode,

a good episode at least, should start. We got the Supreme Court's interim docket decision about the ballroom. At least I thought it was about a ballroom, but somehow in a 14-page opinion, crocodiles are mentioned three times, which was, it felt high to me, honestly, on the crocodile mentioned.

No other animal got a specific shout out. Crocodiles, as I'm sure everyone knows, there are some crocodiles that live in the United States, though generally we have alligators. And if you would like to spend more time learning about the differences between American alligators and crocodiles, go to Florida or Google. They, I think, have some real thoughts on that. The Supreme Court, however,

in a 5-4 decision allowing the Trump administration to continue construction on standing grounds, which we told you all was like a foregone conclusion. And it was foregone, although the 5-4 part was maybe a bit of a surprise. A little surprising, considering that Justice Roberts issued the stay that allowed the construction to resume and then joined the dissent. that would have ended the construction. Hey, that's what administrative stays are about, man. Yeah, but let me read you some pieces of this because, and then I'm going to,

we're going to bring in some Will Bowd writing into this. Yeah. I don't know, David, this got kind of interesting. So I'll just, I'll read you from the majority first. Beginning with the merits, the government is likely to prevail in showing that the trust, this is the National Trust for Historic Preservation, that the trust lacks standing to challenge the East Wing Project. To secure standing to sue in federal court,

consistent with Article 3 of the Constitution, a plaintiff must establish that it has suffered an, quote, injury in fact, end quote. That is, the invasion of a legally protected interest. Further, the plaintiff must demonstrate that its injury is, A, concrete and particularized, and B, actual or imminent. To establish its standing to bring this case, the trust relies on a declaration from a single of its members, Alison K. Hougland.

Hougland says that she lives in Washington, D.C., and expects to visit the neighborhood around the White House about once a month. She asserts that having to view the finished ballroom the government is constructing would cause her to suffer injuries to her aesthetic, cultural, and historical interests because she finds the scale, height, and massing of the government's design distasteful. On the strength of that declaration, the trust contends it has Article III standing to challenge the East Wing Project. I'm going to continue reading for a little bit here. This court has not found standing in circumstances like these before. To the contrary, we have repeatedly held that mere offense,

disagreement or distaste does not qualify as a concrete and particularized injury under Article 3. As we have put it, this court has long made clear that distress at or disagreement with the activities of others is not a basis under Article 3 for a plaintiff to bring a federal lawsuit. Instead, to secure standing, a plaintiff must identify some concrete and particularized injury other than the psychological consequences presumably produced by observation of conduct. with which one disagrees. Nor is it clear what would remain of Article III's concrete and particularized injury requirement if we were to extend our case law in the manner the trust now suggests,

perhaps nearly any government action or project offends someone's sensibilities, and adopting the trust's unprecedented and limitless view that offense alone suffices to establish a concrete and particularized injury would seemingly usher in a world where virtually every citizen had standing to challenge virtually every. government action they do not like, an approach to standing that this court has consistently rejected as flatly inconsistent with Article 3. Absent some considerable revisions to our existing standing doctrine, then the government is likely to succeed on the merits. That's the gist, David. When I read that, I was like, check, check, check. That's correct. Like, if we just allow

someone to say, what you're doing offends me, we've gotten rid of standing doctrine. And I don't know why we wouldn't have taxpayer like standing and congressional standing because like I think I have more of an injury as a taxpayer than someone who walks by, you know, any building and is like, I don't, it offends me to know they're doing something I don't like. Like taxpayers at least in like have some skin in the game, be it a penny or otherwise. Yeah, that it strikes me that taxpayer standing is far more concrete and particularized than aesthetic standing, you know, because what would it be one quarter of a penny being misallocated, but it would be your one quarter of a penny. It would be actually something of yours, right?

Yeah. But we've long rejected taxpayer standing as some sort of like freestanding ability to challenge congressional appropriations, challenge military appropriate. I mean, you know, challenge the military budget, you name it, challenge deployment of troops. So we've said in at least one respect where you could pretty easily argue something pretty concrete in particular eyes. we've said no standing there. And this courts seems to be trending towards. And as Will Bow talks about that we'll get to, has been trending towards a narrowing of standing.

But this was one of those classic examples where the majority seems very solid and like, what are we even doing here until you get to the descent and to the crocodiles? Because there is a fact, and I know you'll be getting to. this and reading it, that some of the standing cases involving environmental issues get really freaking close to this. And this is where we went to with the D.C. Circuit case where readers will remember, I mistakenly identified a Supreme Court precedent as the D.C. Circuit precedent. How dare you, sir? I know. But when you read the D.C. Circuit case and you read the D.C. Circuit going through both the Supreme Court standing and the D.C. Circuit standing rulings on

environmental issues, all of a sudden, this owl my eyes standing was like, oh, that's actually a thing. It seems to be a thing. And it wasn't just, I could understand if you were fishing, you're hunting, you're engaging in actual physical activity on the place, you're enjoying the benefits physically, enjoying the benefits, like maybe eating the fish or eating the, you know, the deer that you hunt or whatever, that's not just aesthetic standing, but there seems to have been aesthetic standing in these environmental cases. Exactly. So on the one hand, everything that the majority in the per curiam opinion says sounds exactly right to me from a constitutional sort of legal philosophy standpoint about standing. But the court's precedent is another thing entirely. So now let me read

you from the dissent written by the chief. To serve as the basis for her standing, Houglin's aesthetic injury must be concrete and particularized, to her, real and not abstract. Separating the concrete and particularized from the abstract can be difficult in this context. Our precedents, however, have noted that an injury to a plaintiff's, quote, mere aesthetic interests,

can qualify as concrete and particularized. And we have said in one of our legal, standing precedence that it was, quote, of course true that a desire to observe an animal species like a particular crocodile, even for purely aesthetic purposes, was undeniably a cognizable interest for purpose of standing. Undeniably, undeniably. That's Lujan from 1992, and I sort of was like, strong words. Let's see if you can back him up. So I went to Lujan and I want to read you because this person actually loses on standing. That's what makes it kind of weird.

You have this sentence about undeniably, and then it's like, yeah, but you don't get standing for the crocodile thing. Okay, so let me read you the, of course, and undeniably. This is from 1992, Lujan. And this is like, I wouldn't say it kicks off the aesthetic injury, David, but at a big, at the like,

what gets quoted now, this is the big, like, this is what kicks it off in 1992. Okay. Of course, the desire to use or observe an animal species, even for purely aesthetic purposes is undeniably a cognizable interest for purpose of standing.

But the injury in fact test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured. And then I just, because again, this opinion talked about crocodile so much, it's referring to this single paragraph in Lujan. So I'm just going to read you

what all this crocodile talk is about because I didn't remember this. With respect to the aspect of this case, the Court of Appeals focused on the affidavits of two defenders, members Joyce Kelly and Amy Skillbread. Ms. Kelly stated that she traveled to Egypt in 1986 and observed the traditional habitat of the endangered Nile crocodile there and intends to do so again and hopes to observe the crocodile directly and that she will suffer harm in fact as the result of the American role in overseeing the rehabilitation of the Azwan High Dam on the Nile and in developing Egypt's master water, plan. She also traveled to Sri Lanka in 1981 and observed the habitat of endangered species such as the Asian elephant and leopard, what is now the site of another project funded by the agency, though she was unable to see any of the endangered species, yada, yada. You get the point, right? Like we didn't even know if she was going to get out there ever again. She had plans in some undefined future point. This reminds me, David, a little bit of the standing case that we had a couple terms ago about the Americans with Disabilities Act. Yeah, I was thinking the same thing.

Yeah. Right. So just to remind everyone of that case, under the ADA, your website has to be ADA compliant for people to book rooms. It like has to give information about like whether the rooms are ADA accessible or whatever. And so this woman would just go around going to websites, seeing if they have. this like ADA, you know, accessible stuff and information. And if they didn't, she would sue them, even though she had no thought in her head of actually going to visit these hotels, whether they had the ADA compliant website or not. The Supreme Court ends up digging it. I was sort of sad about

that. It was, you know, a Barrett opinion, very well reasoned. But, David, it's this idea that, like, I might someday do a thing is not concrete and particularized. It's not eminent. So that's the Lujan 1992 thing. This is then the chief dissenting. And he says, given the distinctive nature of the White House and Hoagland's focused in substantial interest in viewing it in its traditional form, her aesthetic injury from the construction of the ballroom is concrete and particularized. You know, the White House is, you know, very specific. He quotes Teddy Roosevelt, yada, yada. With the court's rejection of Hoagland's standing today, however, it is now the case that I want to look at. at a crocodile can adequately answer the ever-critical, what's-it-to-you question of Article III standing,

while I want to look at the White House cannot, no matter how distinctive the particular viewer's interest in looking at it may be. This is also an interesting disagreement between the majority and the dissent, David, which, boy, it's a narrow sliver here, right? Like, you have sort of Article III standing as a whole versus precedent. You also have maybe Hoagland's special, because she's not just a random person walking through the park. As the chief says, like she has a particular and demonstrated interest. She's written books on architecture.

She's been a leader in the National Trust for years and years. So she's not like a random person in the park. I don't know that I buy into that, David. But this, I'm going to hand this over to you because I think we've summarized the two sides pretty well here. If this were a merits decision, it feels like they would be narrowing or over. returning some of their aesthetic standing precedent. But because it's an interim docket decision, I think they feel very uncomfortable saying that they are affecting precedent. And so you have the dissent saying, if we were just applying our precedent, this flies. And you have the majority

trying to like squint real hard and say, no, I just think the majority's right on standing, but this is interim docket. And maybe that should change things. Well, I'm getting a serious Humphrey's executor to slaughter vibe here. Right. So if we remember, you know, you had Humphrey's executor, President Camp Fireheads of Independent Commissions, over time that's chipped away, chipped away, chipped away. Then you get to interim docket stuff where the court is upholding

Trump actions that are inconsistent with Humphrey's executor, but has not overruled Humphreys executor finally and fully quite yet. But the handwriting was on the wall. And so you went from chip away, chip away merits decisions that like took a big kick at it. We've seen that as well on standing. We've seen some some interesting narrowing of standing. So all of the signs are pointing to more narrowed standing. But as Justice Roberts and the other three justices, Kagan, Sotomayor, and Jackson point out,

the precedent ain't been overruled yet. It's still the precedent. And so it's a very interesting. of it's almost like a constitutional law no man's land in the sense that you know where the court is heading but it hasn't formally and officially gotten there yet but seems to be ruling in the interim docket in a manner that is consistent with where it's heading not with where it's been and that makes it all rather confusing to be honest as to where are we now we know where we're we're heading, we know where we've been, we're not exactly sure where we are now because

they didn't overrule that other precedent. It's still precedent. And so it seems to be if I'm wanting to look at a building in a national park, at the present moment, I have a less concrete and particularized entry than I do if I want to look at an animal in a national park. And that's not a sensible distinction. That's a distinction without a difference. It strikes me.

So David, this is from the trust brief walking through some of these precedents. And like, I think their descriptions are all correct. And this sort of like puts it as precedent versus philosophy of standing. All right, I'm just going to read some of this. Numerous decisions from this court and the federal courts of appeals recognize Article 3 injury where a plaintiff suffers concrete and imminent harm to her use and enjoyment of a particular place. In Friends of the Earth, this court held that individuals who,

lived within driving distance of a river and who fished and picnicked in it had standing to challenge water pollution. The individuals used the affected area, the aesthetic and recreational values of which would be lessened by the defendant's conduct. That harm established an Article III injury because, as this court has explained, if the harm in fact affects the recreational or even the mere aesthetic interests of the plaintiff, that will suffice. That was from a 2009 opinion. So David, like, There's no question that the precedent is, what was the wishy-washy? What was, it's there. Yeah, it's there.

I feel like this case is precedent versus direction. Yep. Which was the pre-slaughter situation, precedent versus direction. And I feel like we're exactly in that spot on standing. I think it's virtually inevitable that aesthetic standing is going to be narrowed, limited in some pretty dramatic ways, maybe to the point of extinction. So I think we all know directionally where the screen court's heading, and this seems like a really good time to bring in friend of the pod will bode. All right, exactly what I was going to do. So he says, to be fair, it is true that the aesthetic interest recognized in the court's environmental law cases are not easy to reconcile with some of the court's stricter views of standing in other lines of doctrine.

In Alliance for Hippocratic medicine, for instance, Judge Ho had argued that the platus could challenge the prescription of Mitha Prestone because they had an aesthetic interest in seeing babies being born. But the Supreme Court unanimously reversed. So what are we to make of aesthetic standing in environmental cases today? A few possibilities. One, it has long been the conservative dream to overrule aesthetic standing entirely, and the court will do so the next time it gets the chance, including the next time aesthetic standing is actually dispositive for. an environmental plaintiff. It is notable that in many of the environmental cases, the plaintiffs ultimately lose on some other ground, including sometimes another standing argument, i.e. Lujan in 92. Does anybody think this will happen? Two, aesthetic standing will not be overruled, but it will be

officially limited to national parks. Well, that will not quite work because the White House is itself a national park. I love that. Perhaps limited to the desire to look at animals and plants and natural outcroppings rather than to look at pretty buildings instead of ugly buildings. Three, aesthetic standing will be limited to cases where the plaintiff also has a statutory cause of action, which was present in many of the environmental law cases, but not, I think, the ballroom case. A smart friend floated this to me as an intuition, but this will be tricky because the court has decided that statutory causes of action are, one, irrelevant to Article III standing, and two, unnecessary in cases seeking equitable relief.

for the court will simply grant or deny standing at its whim calling it aesthetic standing when it wishes to grant and offense when it wishes to deny david none of these are great options i'm going to be honest i mean in terms of uh sort of the institutional stability of the court except i mean number one is except you know you have the interim docket problem the national park thing to me doesn't work at all that's what i'm going to call from now on the crocodile issue like why is there standing to see a crocodile but not standing to see a building, I tend to agree with that. Yeah.

The cause of action thing doesn't work for me at all. Standing should be totally separate from cause of action. So it may be nice, except you kind of have to do standing first because that's jurisdictional. So nope, that doesn't work for me. And the call it aesthetic when we like it and offense when we don't definitely doesn't work for me.

David, this gets to my like, overarching problem. I think a lot of people who listen to this podcast or just, you know, living their lives as everyday Americans would like there to be more standing. They would like there to be taxpayer standing. They would like there to be congressional standing because this idea that the executive branch can break the law. And by the way, here's something that the chief wrote that I think has been quoted extensively that the majority does not disagree with. They don't take it on one way or the other, the construction is likely unlawful. Pursuant to its plenary constitutional authority over the District of Columbia and federal property, Congress has explicitly prohibited the construction

of any building or structure on any reservation park, et cetera, et cetera. The ballroom is a building or a structure being erected on federal park grounds. Yet Congress has not passed any law resembling express authority for the executive's construction of it. So like, stipulated, the Trump administration is violating the law. I think most people want there to be a way to sue to stop them from violating the law. What makes me, I think, deeply unpopular, perhaps in my own household, is that I don't. Like, I think they're breaking the law. I really, really don't like it. And I do not want floods of lawsuits because it will be whoever's in the White House and it will be whatever they're doing, whether it's, you know, very lawful or not, the lawsuit will then proceed if they have standing, even if they end up losing.

You will flood the courts with political lawsuits, and it will pull the courts further into these political fights as you expand standing. So, yeah, I want to get rid of aesthetic standing. I want to get rid of a fence standing. It's not because I don't like the environment. I will put my crunchy credentials next to any of y'all. I know more about beetles and crocodiles. but it causes this flood of lawsuits. Anytime the government does anything,

you're going to end up with the California housing problem, right? Like, you can't sneeze without inviting 47 lawsuits. Nothing moves forward and the status quo becomes sclerotic. That won't work. I don't like it. And the tradeoff is allowing the executive branch to get away with breaking the law unless or until voters or Congress stop them. I'm not saying I like that.

It is a real tradeoff. but I think it's better than the flood of lawsuits and pulling the courts into these political fights. I tend to agree with you on this. I think that if one of these central problems that we have is that the branches of government are not functioning as intended, we don't necessarily solve that problem by bulking up a different branch of government beyond what it was intended to cover for the failures of another branch of government. Especially you don't necessarily do it when in spite of the fact that, you know, look, people talk about trust in the Supreme Court falling, yes, compared to the other branches. It's still, you know, there's still a relatively decent degree of confidence in the court, which would make it very tempting for people to want to pour more stuff into the court, which I think would then, as you're saying, end up diminishing confidence in the court. But there is a sticking point here, Sarah, that is just hard to get around. Like, it just sticks in your craw. And that is, illegal things don't get addressed. and that feels to us sort of wrong at like this DNA fundamental level.

Oh, we know for a fact or about as nearly as you can know something for a fact when you have a statutory argument. We know with a high degree of certainty that this ballroom construction project isn't just open defiance of law passed by Congress. Just absolute open defiance of it, indefensibly indifiance of it, Congress indefensible that they will not act. that's their role, that's the way this whole thing was supposed to be built. And then it just feels really weird to say, oh, and then courts that opine on the law don't have a role in addressing something, at least under the facts as we know them, when it comes to something that seems to be indefensibly illegal. And that is just very difficult for us to stomach.

And I think we're kind of willing to stomach it when it comes to, say, war in peace, the idea that, you know, most people that I've talked to who even have some of the most, you know, aggressive views of judicial standing would balk at the idea of a judge issuing an injunction against an airstrike. Even though an airstrike could be plainly, clearly, absolutely illegal under American constitutional law. But a lot of people would say, whoa, that is opening Pandora's box. But when it comes to something like this, I think it's less obvious how Pandora's box gets opened. And I think you explained it quite well. And I do think that one of the benefits of this federal system of experimentation that we have is we have, as you were mentioning, in this California example and others of when you do open things up to sort of endless legal challenge, there is a very high cost that is paid. And that cost stagnates economies. It stifles development. It creates real, not. on effects for including poor and working class Americans. Because always remember this, complexity is a subsidy.

It's a complexity as a subsidy for those people who have the resources to navigate it. And so the more legal hoops you put in place, you don't necessarily end up creating a greater, a better system of justice. You often end up with all your well-meaning intentions to democratize the process, privileging those people of the most resources, et cetera. So there are knock-on effects here to just opening the courts gates wide. And you'll note, I mean, it's almost with like monotonous certainty that we're going to get back around to this sort of idea that the actual remedy for the failures in our constitutional structure right now are to restore the constitutional structure not to bulk up one of the more functioning branches at the continued expense of the less functioning branches. And I just had a thought.

I don't think there's any way that this construction is completed by the next Congress being sworn in. And if there is a Democratic Congress, a Democratic Senate, it's a very open question to me as to whether or not you might see some congressional action that could actually address some of these issues here. It's quite possible, but it's very clear. When the president's party controls the House and Senate, that the House and Senate stop functioning as independent branches of government and function as adjuncts and guardians and defenders of the president. That's just been the case for a very long time, very few counter examples of it. And ultimately, honestly, Sarah, that's the voter's fault. Ultimately, that is the voter's fault. You are getting exactly what primary voters vote for.

Good hard. Yep, you're getting it. And so, you know, at the end of the day, we can talk and talk and talk about the different branches of government. But when you get right down to the brass tax, the primacy of the presidency, the subordination of Congress, the elevation of the judiciary as a compensating factor, all of that's on us, the American people who have placed the president ever, ever, ever closer to a popular, well, a semi-popularly elected monarch. And it's on us. It is on us. All right, David, when we get back from the break, I've got two news items I want to talk to you about. One, the New York Times piece headline, how the Supreme Court locks away its own history.

And two, and this one I think will intrigue, David, signs of AI authorship in federal appellate opinions. We'll be right back. Two and five Canadians will hear. hear the words, you have cancer. That's why every step and dollar raised matters. On September 19th, join thousands in Toronto for the Princess Margaret Cancer Foundation Walk. Challenge yourself, friends, and family to walk 21 kilometers in support of life-saving

research. Together, we can carry the fire and help create a world free from the fear of cancer. Register today at pmcfwalk.ca.ca. And what better way than with a delicious Pratt organic coffee? Starting with just $1 all day, every day now until December 31st. You gotta try breakfast. At participating A&W locations in Ontario. Across Canada in a Volvo.

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Learn more at VolvoCars.ca. All right, David, let's start with the justices papers. Jody Cantor wrote this piece in the New York Times about what happened after Justice Scalia died and he had not left any instructions for when his papers should be released. and the other justices met to discuss it. Different justices can set different rules. They've got this very helpful chart of when we might see the full story

behind three key Supreme Court cases. Bush v. Gore, because Souter was part of that, he said he didn't want any of his papers to be released until everyone involved had died. So they're saying that we wouldn't have all the papers, like the private papers around that until perhaps as late as 2040. Obergefell v. Hodges would now be based on Kagan's death.

They have her potentially living to 120 years old. So I'm going to say she's not going to live to 120. Love her dearly. Well, there have been a lot of advances in longevity science, Sarah. But 2050 wouldn't be crazy. Trump, the United States, would be based on Barrett's age. let's give her until, you know, 90, that would be like 2060, a little bit after. David, Justice White, in 1986, summoned his clerks to his chambers for a special assignment

that took several weekends. Together, they marked his quarter century on the court by feeding his records, including from the landmark Miranda Wright's case, into a shredder purchased for the occasion, according to his biographer. Well, here's an entire article. Oh, here's an entire book. one of the clerks later told Mr. Hutchison, describing what it was like to insert invaluable history

into the jaws of the machine. I couldn't believe how much history was going down the chute. Okay, David, maybe you should start because I have actually a lot of feelings about this. The purpose of the article is, you know, we need more transparency into the court. The justices should release their papers and maybe Congress should pass a law forcing the justices

to release their papers. I don't, like, soon, quickly, either right when they retire, maybe a couple years, whatever, because transparency, American pie, I don't know, something, something, the rule of law. What are your thoughts? So I am inclined to towards transparency, but I have qualms and concerns when transparency when transparency comes too soon. And so I do think that there is value in learning more about the Supreme Court, that the black box.

And in my view, the black box overall hurts the court more than it helps the court. I think that, you know, one of the, I keep going back to this really fun sort of anecdote from a friend of mine who had advisory opinions listener who got into the court and started listening to oral arguments for fun. Why? Why was that fun? Because it reminded him that there is a place in the American government. where sophisticated people make intelligent arguments in good faith,

and they're pushed and questioned by intelligent people acting in good faith. And so for him, lifting the lid on the court more and doing that extra mile way beyond your average citizen was actually encouraging and strengthened his view of the institution. And I tend to think that the Supreme Court as an institution actually compared, you know, compared to the others, tends to look better the more you look at it, to be completely honest. And so, but at the same time, I also think that there's real value in candid deliberations that are behind closed doors and the extent to which a justice thinks, well, my reflections

here are going to be in the New York Times or the Washington Post in X years or X months. How much would that impact or influence them? I've been persuaded by some of Jonah's arguments, for example, that cameras in committee hearings in Congress have net, net been pretty bad. They've transformed all of it into spectacle. And so that's why I've been very resistant to the idea of cameras in the court. So I take a sort of a squishy middle position here, which is I do think a uniform rule would be prudent, but it would be a uniform rule that would give a lot of runway. maybe more related to the retirement of the last justice, not the death of the last justice, but the retirement of the last justice involved.

So that's, I'm squishing out on that. Yeah, you are. But I can get on board with the retirement of the last justice versus the death of the last justice. I'm not sure that like I, you know, that's a hill I need to die on. Here's a hill I'll die on, though. This idea that you have a, like, right to transparency to the internal deliberations of anything and that you, not you, David, one, doesn't see the enormous downsides that this has

caused. Have you ever tried to have a private conversation? Sorry, let me rephrase that. Have you ever tried to have a meaningful conversation on social media with everyone watching and weighing in? It's really hard and very unlikely that you can test out new ideas, share your real thoughts, have any sort of vulnerability with everyone watching. Welcome to C-SPAN in Congress. And if you release these justices papers, let me tell you what will happen because it's happened in the executive branch already.

FOIA was meant to increase transparency. And what happened? It didn't increase transparency. It just means people don't do anything over email or documentation anymore. Signal chat. That's right. Because humans crave the ability to be understood

and to understand, and they will find ways to do that. And it doesn't work with, transparency. So if you make the court's papers public by some law, they'll stop having the papers. Or worse, you will have the papers and they'll stop having real conversations about the cases because you cannot have real conversations with everyone watching. And David, I'm just in a bit of a mood about this because I'm very tired of people not sort of seeing that their own interest in understanding how something happened in the past, like, shouldn't Trump everything else?

Like, they're not a part of this institution. I know reporters want the papers, but they don't want them for, you know, public policy reasons. They want them so that they can sort of be in the room where it happened, so to speak. But you weren't picked to be in the room where it happened. Live with that. Well, I think we're bad at tradeoffs. Just as a general. matter. Like, we're just bad at thinking through tradeoffs. What we are much more like are firefighters in the sense that you see something on fire and you put it out. And whatever, however you diagnose the fire, like the fire might be, well, we've swung too far. The government is swung too far towards secrecy, which is a real thing. Like, we've talked before about the

explosion of classified information in the government, which is also a consequence of some of the transparency, some of the transparency pressures. If you want to avoid FOIA, go to your CIPRICT computer and make it classified. So we do have a problem of a government that is often moving too much towards secrecy. And then if that is the fire that's burning, we run to try to put it out, often not thinking that they're, and not really thinking through that there are some underlying interests that are important that actually even led to the problem existing in the first place, that the problem exists in the first place because there was a need and there exists a need and that people were trying to meet the need, but then doing so in a way that was excessive

or extreme, et cetera. And so that's why I have that sort of mixed view. I, very much think, you know, for example, I law that said that any discussion, any, any notes, reflections, recordings, et cetera, of in-chambers discussions following, following oral argument, you know, that the key, that key moment where all the justices are in the room and there's, that nobody else is in there, that that should be, you know, that, that should be like in the movie Dune when there's literally like the cone of silence that comes down and you can see that people are speaking. You cannot hear what they say.

That a cone of silence around in certain areas, I would be very, very much in favor of maintaining indefinitely confidentiality around those critical, critical deliberations. The whole thing of here's a book that I'm putting in the shredder. There's the like that is going to happen. And if you... That's too much. But if you tell the justices that, like, they will have their papers released as soon as they retire by law, again, they're either not going to keep the papers at all or they're going to shred the papers because people crave transparency. And, David, there is this one part about clerks being able to go to the basement to review this themselves.

In the bowels of the Supreme Court, below the red velvet grandeur of the courtroom and the shuffle of tourists, the justices are assigned, storage rooms in which they store case files, said people familiar with the court's practices. Access to the records in the basement is highly restricted, but every year, about three dozen new people are allowed to read some of them, the justices' incoming law clerks who arrive for year-long apprenticeships. Reading those files clears away the mystery that surrounds the court, say those who have seen them. Clerks often ask to read the insider accounts of the most game-changing decisions, including how the justices decided to overturn limits on campaign spending in 2010 and approved gay marriage nationwide in 2015, in both instances, by just one vote.

But the deeper education, say those who have read the papers, is in learning about the dynamics among the justices. The papers reveal when a coalition has come together or dissolved, what has spurred the justices to sometimes cast surprising votes, the tactics they use to influence one another, and how they addressed one another in private. All true, David, but A, a clerk doesn't get to go to a different justices basement storage room. It is up to the justice to give their clerks if they want to access to their own papers. Okay. So here's a question then. Would you favor as someone who's in the position of very much valuing the confidentiality, a uniform rule that does not allow a justice to release papers if they want to? Because one of the interesting parts of the story was it's totally

up to them. And there's been at least two occasions where a justice drops the atom bomb, man, you know, just like Yolo, Leroy Jenkins. Yeah, it was Festivus at the Supreme Court. Yeah, absolutely. So should Congress pass a law keeping Leroy Jenkins out of Upper Black Rock Spire? And that is a World Warcraft pull from way back. And it might have been lower Black Rock Spire. Gosh, listeners help me. Okay. So we now have two of my values colliding. One, is I would prefer that every justice keep their papers private until the retirement or death of the last justice involved, because I do think that aids with communication and deliberations and sort of a good culture. So on the one hand, I should want a law that just mandates that.

But on the other hand, there's also a value to the justices having control over their papers because, again, once they don't have control, I think they are just less likely to have papers. because if you knew that Congress could just pass a different law, change the law, I'm not going to keep private papers if I don't control my private papers, if that makes sense. So I'm against the law because I think that value trumps my retirement value. And I think the justice's incentives are pretty well aligned to continue the institution's internal deliberations. But David, like the clerks who get to see these basement storage things, like it's no joke. It's very, very interesting.

But you notice that the two main things are, one, to learn about something that happened that we got the opinion of, right? I'm not sure that the public has some additional interest. I don't know that the clerks have some additional interest in, like, learning how we got to the decision when you got the decision. And two, the internal dynamics. Once again, I don't know that you as the public have some right or the reporter, some, you know, right to the internal dynamics between the justices. Is it interesting? Of course, I'm super into it. But if you value that against the tradeoff,

which is to hurt the internal dynamics, you know, don't do that. You know, it's funny. Anything that leaks from the court, I read voraciously. Totally. Totally. Read voraciously.

And then we talk about it at length. And then as I'm doing it, I'm also thinking, huh. Huh. Should this be happening? You know, it's sort of like the, you know, going back to the classified information discussion. Sometimes we have to realize that we occupy different roles. And the role of a government employee is to keep the secrets that you're bound to keep by law and by agreement. You've signed a contractual agreement, et cetera. I understand whistleblowing, but there are channels for whistleblowing that exist.

Now, some of those are being closed off more, but there are channels for whistleblowing that exist. And we can't have a classified system where we essentially say, well, it's only as secure as the conscience of the most troubled person in the office. That is not a classified information system. You know, one of the things that was really interesting to me about the Manning the leaks when Bradley Slat, who became Chelsea Manning, leaked. the, you know, enormous number of classified files.

And a lot of that was justified by people outside by saying he exposed war crimes. And I was like, wait, a lot of these things you're calling war crimes are not war crimes. So here you had a very young enlisted soldier not qualified to make assessments of what was and was not a court war crime, making their own assessment and releasing it into the public and then people who are equally as misguided and equally as ignorant going, whoa, look at this war crime of things that were not war crimes. So that illustrated to me the sort of classified information is only secure as the most, you know, is the troubled conscience of the most troubled person in the room. That's not a system that works. And so, but at the same time, journalists have a very different function. We have a very different function with the limited

sections we talked about before, like when leaders from say the Times or the Post or the Wall Street Journal say, hey, we have some information. However, we know that it could put lives at risk. So we're holding on to it until you tell us everyone is safe. Then we'll publish the information. So there are limited circumstances where the roles, there is an event diagram where the roles should overlap. But we do occupy different roles. And I think that that creates a lot of inherent tensions. And until we understand and fully absorb and appreciate the different roles, it's hard to understand why these differences exist.

All right, David, I want to talk to you about this Josh Morrow piece that was published over at the Volick Conspiracy. I was intrigued to see what struck me as indicia of AI writing in a recent published opinion from an Article III appellate court. So I took the opinion to Pangram and AI detection. tool. Pangram's results backed my intuition, identifying multiple passages, some stretching for pages, as AI generated. Then I ran a full set of this year's published opinions from the regional courts of appeals through Pangram about 2,250 opinions in all. Dozens show signs of AI writing. Now, he's very

clear. He's not going to release the names of the judges or the opinions that are involved, because that's not the point of this. He also notes that he put in all of the opinions from 2022, and that turned out a 0.000,000,000-0-0-0-0-0-1-0-1-1-1-1-1-1-1-1-1-B-Bing, because obviously AI wouldn't have existed then, but it was a good way of checking, you know, sort of pangrams overreactiveness that maybe it sees AI writing everywhere. So in 2022, it sees no AI writing writing. And in 2020, 26, 50 opinions showed signs of AI authorship. The exact percentage in any given opinion ranged from less than 1% to more than 50% AI writing with most results clustered near the bottom of that range.

Still, the contrast with the January 2022 opinions was hard to miss. And David, he says, like, look, it's not that I think there should never be AI involved in what judges are doing, for instance, maybe you want to outline an opinion. Maybe you want to, I don't know, there's things one could do, but 50% of the opinion being AI written, maybe that's not great, not because AI is bad or hallucinating.

This is all assuming. I'm for our purposes, David, I want to assume it was read over, everything was fact-checked, there's no hallucinations, it is 100% accurate. If there's hallucination, it's bad, full-step. Right, yeah.

That's right. No, no, no. So, like, assume the best version of this, right? 50% was written by AI, but you went through and checked every single line. It is what you wanted to communicate. But as he says, good writing is clear thinking made visible. Yes. And so if you're outsourcing some of the writing, you may not have had the chance to have your mind work through some of the problems, right?

because the writing comes from the thinking. David, that's the thing I'm most concerned about. Also the fact that if judges are saying that their jobs can be done by AI, maybe you're replacing your own self through this. Yeah, yeah. That being said, like, we did a chat GPT play on this show. So am I being hypocritical and thinking that something about this is wrong? I mean, I'm a podcast or not an Article III judge, but still, you know,

there's like these set part of. of opinions, you know, the standard of review, I'll be honest, when I was clerking, you just cut and paste that from a different opinion. So it's not AI, it's almost worse. Yeah, yeah. There were lots of cutting and pasting in my time as a clerk because lots of things are the same in different opinions,

the standard of review being the most obvious. If it's de novo, I don't need to rewrite the de novo section. Oh, if people do the mass-scale plagiarism that occurs of briefs and court opinions, they would be stunned. Like when I was, you know, when I was an associate, every firm I worked at, and a partner, every firm I worked at had a version of a brief bank. And so one of the things that you would often do when you had an issue

that you weren't necessarily familiar with is you'd go to the brief bank and you would see was there any similar writing or for especially things like standard of review. If you're responding to a motion to dismiss, there is a kind of rote part of that. that is the same, basically the same for every brief. Here is the standard for when you grant a motion to dismiss. Here's the standard for when you grant a motion for summary judgment. And the way I dealt with that was I just shortened it dramatically to like this very, because everybody knows it.

At this point, you're a federal judge and you don't know how to decide the standard under 12B6 motion. I would just put it in there to go through the motions just, you know. But often I would take the same thing I wrote. two briefs ago, three briefs ago, four briefs ago, but it's what I wrote. It was what I did. But sometimes I would paste what my colleague did, you know, on a, you know, this is something that is very common. So I do think we need to put that into perspective. But at the same time, you're exactly right that as AI gets more advanced and it starts, it hallucinates less, It makes fewer of those mistakes because a lot of the reason why we get really upset when we see a lot of AI writing is we know well enough that that's not reliable.

It's especially not reliable in our field. And so it doesn't just connotes laziness. It connotes sloppiness that could be damaging. Well, but what if when, if and when it gets a heck of a lot better? Would you want to go to the AI as the truly a most fair, deeply following precedent? no human emotion or to the extent that human emotion exists, it's moderated through artificial intelligence, it's filtered through the AIs, you know, moderation of emotion. Yikes. You know, it's something that in the one hand, it feels like, okay, maybe you could have real rule of law

and predictability, but it makes people nervous for very good reasons. And I do find it interesting. that there was the contrast between the earlier writing and the later writing to show that, you know, this is not just an AI detector kind of detecting false positives because some of the earlier versions of AI detectors were awful. And then, you know, some of the ticks of AI writing, like M-Dashes, Sarah, I've always loved me the M-Dash. Love, absolutely.

Love the M-Dash. And I consciously use it less. Although I do think I use it differently than AI does. Oh, interesting. but I consciously use it less. I have gone to more semicolens. There are other sentence constructions. By the way, David, when I asked AI to pick out data about different justices writing,

you know who is the number one semicolon user on the Supreme Court today? This is a piece of information that nobody needs in their brain, but like I now have dedicated how many neurons to this. So now you're all going to know it. Justice Amy Coney Barrett is the number one semi-cold. and user by a mile. Congratulations, everyone. Now you two have neurons that are attached to that little nugget. For some reason, that feels right for an academic. It totally feels right. Yeah, 100%. It totally feels right. But yeah, let me just put it this way. There is a role for AI at law,

and we've not figured it out exactly very well yet. And I still think that the, let me be biased, the way we did it with the chat GPT play, I think was the right way to do it at this stage. of AI's development, especially where we say, look, the only way we could do this is that we had an AI first draft. There's just no way. From inception to completion of the idea, there was no way. But at the same time, we did not trust the AI. At no point did the AI have the final word, that there were substantial revisions and full disclosure. And so that feels like some of the difference here, that people feel bait and switched when there's use of AI without disclosure of use. And don't get me started on the Wall Street Journal, Trunken Miller, op-ed, the AI-generated

Wall Street Journal op-ed. Oh, yes, yes. Okay. Well, yeah, that's a different. That's a big no. That is a huge no. All right, David, when we get back, we're going to get through some of these circuit opinions. And boy, we've got gun surveillance, funding conditions, Looper Bright. Vacancies Reform Act in the 26th Amendment? I'm going to start with the 26th Amendment because shout out to Mrs. Healy, my eighth-grade teacher, who made me memorize every amendment and the year it was ratified. So y'all, I know what the 26th Amendment is. Two and five Canadians will hear the words, you have cancer. That's why every step and dollar raised matters. On September 19th, joined thousands in Toronto for the Princess Margaret Cancer

Foundation Walk. Challenge yourself, friends, and family to walk 21 kilometers in support of life-saving research. Together, we can carry the fire and help create a world free from the fear of cancer. Register today at pmcfwalk.ca.ca. Gessing is for game shows, not your business. Workday is the enterprise AI platform for HR, finance, and IT, with AI grounded in your context to get work done and done right. It's a new workday. All right, David, the 26th Amendment to the United States says, the right of citizens of the United States who are 18 years of age or older to vote shall not be denied or abridged by the United States or by any state on account of age. So, we nevertheless have a law in South Carolina, which says that you can have no excuse

absentee voting if you are over a certain age, 65 years of age or older, but you cannot have no excuse absentee by male ballots if you are under that age. So does that violate the 26th Amendment? The Fourth Circuit says, yeah, pretty obviously. It changes your access to vote based on your age. I understand there are reasons for it, but they're not like narrowly tailored, You know, it's not like if you're 65 years of older and have a disability or something. Like, if the point is to get better access because old people may not be able to get to polling, then, you know, make it based on access, not on age. There's lots of people under 65 that have trouble getting to polling places. It's, I don't know, David.

It was kind of a fun little decision that felt clearly right to me. It's very clearly right. And it's very interesting because this is almost like a version of. thinking about the problem through a lens that is very much like, say, race-based affirmative action that says, okay, if a problem in our society and culture disproportionately afflicts one group of people, do we grant an advantage to those people on the basis of their identity or not? And so if you, let's say, if you have disproportionate effect of disability, illness, et cetera, on older people. Do you just say, well, all older people thus get an advantage?

Or do you say everyone with a disability gets to use mail-in voting? And that disproportionately affects older people, that's fine. Because it's not a identity category-based advantage. It's a condition-based advantage that does not fall equally on all members of society. So it's like the difference between saying class-based affirmative action and raise. based affirmative action. This is in the voting context. It's very similar to that. And, yeah, it just strikes me as like a layup of a case, honestly. It's a slam dunk of a case, actually. All right, David, the next one I want to do is this Vacancies Reform Act thing. We don't need to

spend a ton of time on it because we've talked about the Vacancies Reform Act quite a bit during the Second Trump administration and my beliefs that perhaps the whole act is unconstitutional, but certainly what the administration's doing probably violates the VRA. I have to say, the VRA is unconstitutional vibe doesn't have a whole lot of originalism legs to stand on because Congress pretty quickly

after ratifying the Constitution and coming into existence started allowing presidents to have acting cabinet members. So like from an originalism standpoint, the VRA is probably constitutional or at least like a limited acting, you know, thing is. But I'm not sure I care, David, in that just because an early Congress tried to violate the non-delegation doctrine and give away a core part of their power, to me, it's informative.

Like, I want to consider that in the balance of whether the VRA is unconstitutional. But that Congress also passed the Alien and Sedition Act. So they're not the arbiters of what is violating the Constitution. Anyway, we have talked about this on previous episodes, but I want to read to you from David Latt's original jurisdiction on where we stand now. When a PAS officer, that means a presidential appointee requiring Senate confirmation, the Senate fills in the S of PAS, when a PAS officer dies, resigns, or is otherwise unable to perform the functions and duties of the office, the FVRA identifies three categories of individuals who may fill the office on a. an acting basis. First, and relevant here, the first assistant to the office of such officer shall perform the functions and duties of the office temporarily in an acting capacity. David, let me just underline a couple words in this statutory language that are being contested

between the administration and those who are saying that they have violated the VRA. Okay, so PAS officer dies, resigns, or is otherwise unable to perform the functions, that is is, does that provide some sort of temporal limit here? The first assistant to the office of such officer shall perform the duties, meaning they were the first assistant when the vacancy arose, the first assistant. Okay? And then number three, the first assistant to the office of such officer, not to the officer, right?

To the office, which means the first assistant could come later. So those are the three statutory things sort of. being bandied about as proof of, you know, winning or losing. Here's the bottom line, according to David Latt. The Trump administration is now 03 before circuit courts in its interpretation of the Vacancies Reform Act, with the 9th and 2nd circuits lining up with the Third Circuit's decision in United States versus Girard, a ruling of the week back in December 2025. In terms of the count of judges, however, the Trump administration is 8-1, while the 3rd and

Ninth Circuit panels where unanimous, Judge Michael Park dissented in in-ray grand jury subpoenas. What happens next? Last Thursday, the Trump administration filed a motion asking the Ninth Circuit to stay its ruling in Jackson pending the filing of a petition for certiorari and any further proceedings in the U.S. Supreme Court than on Friday after in-ray grand jury subpoenas came down. A DOJ spokesperson said it would seek Scudish review of the Second Circuit's ruling as well. As for how the Supreme Court will come out, I have no idea. says David Latt. As noted, the split of lower court judges is 8-1, and the 8 include four Republican appointees, two of them Trump appointees, Judge Miller and Judge Stanley Blumenfeld, who sat by designation

on the Ninth Circuit. But it's possible that Judge Park, a well-regarded conservative jurist, might be the best barometer for how the justices will rule, so stay tuned. Could not meet more right about that 8-1, David, like in the entire analysis, on the one hand, 8-1 does not bode well. On the other hand, the one is a pretty important judge. Michael Park is a great barometer for at least a couple of the justices on the court. So I think they are going to take a VRA case at some point. These seem like good ones to me.

So I think we're headed to the house. This feels like more of your 333 court kind of case. Because as you're saying Michael, I don't think of Michael Park is a barometer for all six Republican appointed justices on the court. I do think that as you're saying, yeah, I think he's a pretty good barometer for a few. But this is another one that feels, we talked last podcast about the immigrant free speech question. Is that one that one that feels like is headed in the Supreme Court? This feels like it's headed to the Supreme Court as well. And there are some facts in the cases.

And this is, you know, one of the interesting questions is how much does sort of gamesmanship influence the court where, you know, there's some interesting facts in some of these cases where it was so very clear how the Trump administration was using a lot of gamesmanship to try to get around and through the provisions of the VRA. Will that matter at all? Will it? I don't know. But I do wonder if you're seeking equitable relief, how much that sort of clean hands approach is going to matter. I mean, the Trump administration's interpretation of this that the first assistant to the office of such officer shall perform the functions basically guts the VRA if at any point you can fire the PAS officer months later put in a first assistant and then declare that person the acting. Why have any of these other provisions? it's a mess.

That being said, the textual, like, there are other places where they say the equivalent of the first assistant to such officer, which would be very clear that it has to be to that officer, not just later on.

So I think this is one where the text and the sort of overall statutory purpose are pretty at odds. And I don't like this, but the administration has a non-frivolous, very non-frivolous textual argument here. It's not frivolous.

I don't think there's any question that's not frivolous. It's also a ridiculous situation that we're in. Both can be true at the same time. All right, so we're going to leave these other circuit decisions. As I said, gun surveillance,

funding conditions, and Loper Bright for another day and call it an A-O. Thanks, guys. Two and five Canadians will hear the words you have cancer. That's why every step and dollar raised matters. On September 19th, join thousands in Toronto for the Princess Margaret Cancer Foundation Walk. Challenge yourself, friends, and family to walk 21 kilometers in support of life-saving research.

Together, we can carry the fire and help create a world free from the fear of cancer. Register today at pmcf walk.ca.ca. Superstore has everything you need this back-to-school season. Save on lunchbox savers like Ziggy's sliced deli meat products for always 375. And get Life Brand Pure Vita shampoo or conditioner for $8 each. At Real Canadian Superstore, when you're ready, we're ready, with a whole world and more.