Advisory Opinions - Trump’s Ballroom Blitz

Episode Date: August 18, 2026

Sarah Isgur and David French return, but with a little bit of a switcheroo as David takes the host’s chair. They discuss President Donald Trump’s appeal to the Supreme Court on the construction of a White House ballroom, a religious liberty case about permits and prayer services, and a bit of reality TV litigation.  The Agenda: –We can all laugh about this one day –Pierre Charles L’Enfant for some reason? –President Trump’s ballroom appeal –Grand v. City of University Heights –This is not a populist podcast –The trashy stuff  Show Notes: –Hulk Hogan v. Gawker–Marquette Law School Poll finds national approval of the Supreme Court at 47 percent; it’s been below 50 percent since November 2025 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. In a roll reversal, this is David French in the host chair, and that is Sarah Isker over there in Houston in the middle of the maelstrom, the hell of moving, Sarah? Yeah, all of the above. All of the above.

We can't find the measuring cups, David. Where are they? Oh, you've reached the Can't Find the Measuring Cup stage of the endless misery? I found a lampshade in a closet. So that was good news last night. And I don't want to undersell it. That was like big good news last night because I had been really looking for that thing. Yeah, it feels overwhelming.

I'll just say that. So I'm just going to go ahead and say that I just want everyone to know this might not be the peak performance podcast for good reasons for Sarah because she has all of the legitimate excuses. she's in the middle of moving. Moving is horrible. With young kids, just adds the degree of difficulty, like exponentially. First day of school at a new school also.

Oh, my gosh. Just stop. You're stressing me out. I just did a quad on the ice, David. Yeah. You are stressing me out just talking about it. And I'm not peak performance for bad reasons. I should be.

I'm coming off the end of a vacation to Yosemite. Our 30th anniversary trip, Nancy and I took to Yosemite. And Sarah, one day, I'm going to have to, when it's not too soon, when the wounds are not too fresh, I'm going to have to just explain to listeners all the ways in which I botched this vacation. Like, from start to finish, it's a parade of horribles that one day we're going to laugh and laugh and laugh about. But it is not this day. Not yet.

And all I have to say, and there will be listeners who will begin to immediately realize how bad this vacation got when it's ending with me frantically Googling the symptoms for cyclospora. Sounds romantic. And with that, let's move on to the podcast, which actually is going to be, I think, pretty interesting. We've got the presidential ballroom. We have a very interesting Supreme Court religious liberal. case, or is it religious liberty, really? We're going to have our own take of a polling discussion you've already heard, but it's our own

take, so you'll definitely want to hear it. And then we're going to wind down with a little bit of reality, television, litigation, but it is actually worth discussing. Disgusting might be the right word also. That might be the right word. At Desjardin Insurance, we put the care in taking care of business. Your business, to be exact. agents take the time to understand your company so you get the right coverage at the right price.

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Scotia Bank. You're richer than you think. All right, so Sarah, I thought we would start with the White House ballroom. And there's a couple of reasons. This isn't a Supreme Court case yet. It's heading in that direction. but there was a decision out of the D.C. circuit and the D.C. circuit has said no moss to ballroom construction right now. And I'm a little bit skeptical of the decision, but not on substance,

on standing. But I don't want to get too far ahead of ourselves first. But before we begin, I would, I don't know if you ever do this, Sarah, but I like to sort of think from early American history who would be a loyal advisory opinions listener. And I have discovered in reading this case about the ballroom who would be a early advisory opinions listener. And it is Pierre Charles L'Enfant, okay, one of the designers of the Capitol, and see if you can spot the reason why. And here's from the very beginning of the opinion. The White House is the People's House, and under the Constitution's property clause, Congress exercises plenary control over the building and its surrounding lands. The White House is also the centerpiece of President's Park and National Park stewarded by the National Park Service.

According to the government is the oldest public building in the District of Columbia, the White House is the crown jewel, not just of President's Park, but also of the Lafayette Square National Historic Landmark District, a site listed for preservation in the National Register of Historic Places. The founding architect of the nation's capital, Pierre L'Enfant, designed the capital city's layout to focus on the towering capital building, the gleaming palace of the people in the new democracy to contrast it with the simple humility of the White House.

See Scott W. O'Berg, Grand Avenues, the story of Pierre-Charles-Lonfant, quote, where the king's bedroom was placed on the central access of Versailles, enshrining the role of divine right transferred via prima genitur. Here in Launfant's plan, the home of Congress took center stage, situated in a high point within the city. The White House is a focal point on the principal north-south access of the Launfant plan. Sarah, am I wrong or am I right? Launfant would love this podcast. I think it goes without saying, really.

Yeah, absolutely. Absolutely. Okay, that's not the main event, but I just, it grabbed me from the beginning as sort of further evidence in this sort of central design of the country. Where is the focal point? It is on Congress, which is going to be relevant later to this podcast, which will show that later in the podcast, not just the historic residents of advisory opinions, but the popular reach of advisory opinions. But the question. But the, the question here is, can the president demolish the East Wing and recreate it and put a ballroom up? And we have to divide this case. And the district court opinion was way, way, way too long, way too long.

Let's divide this simply into our substance and our standing. So the substance here, Sarah, includes a constitutional provision in a statute that I think, Inc. makes it very difficult for the administration. Very, very difficult. So here's U.S. Constitution, Article 4, Section 3, Clause 2. The Congress shall have the power to dispose of and to make all needful rules and regulations respecting the territory or other property belonging to the United States. So this is a classical constitutional grant of authority. and you might think that's what's following next is a classic constitutional delegation of that authority statutorily or otherwise to the executive branches. It's done in so many other areas. But no.

In 1912, Congress placed a statutory exclamation point on its exclusive powers by providing that quote, there shall not be erected on any reservation park or public grounds of the United States within the district of Columbia. any building or structure without express authority of Congress. That's our core constitutional provision. We're in one of those realms where it looks a lot like, say, the TPS decision, where you have a very, very clear grant or a very, very clear statute in that case that the revocation of status was not reviewable. And it's not that there are no arguments to overcome that language.

It's just that you're behind the eight ball. But before I serve this all up to you and get your thoughts, let's then ask the next question. Okay, if it is this clear, if the Constitution has granted this authority to Congress, if it is reserved it statutorily to Congress, who can sue to enforce these provisions? And Sarah, this is where to me the case gets really interesting.

So it is styled as the National Trust for Historic Preservation in the United States versus the National Park Service. And let me explain to you some of the grounds for standing in the majority opinion. And I want your reaction after I do this to all of this. So bear with me. With respect to the first prong of the associational standing test, the National Trust has clearly shown that one of its members, so if you're part of an association and one of your members, has had their rights in fridge, has suffered a concrete, particularized injury, then they can suit. Specifically, the trust is shown that as long-term member, Professor Allison Hogan, has suffered

a concrete and particularized injury, in fact, that is actual or imminent, that her injury is fairly traceable to the challenged action, and her injury will likely be redressed by ruling in the National Trust favor. Professor Hogan is an architectural historian, author, consultant, and Professor Emerita in historic preservation. She's been a member of the National Trust. She's previously worked for 15 years of a historian. Professor Hoagland routinely recreates the historic aspects of the White House by walking in front of the White House.

And in Lafayette Square, directly across from the White House, she intends to continue doing so. She regularly walks through portions of the President's Park, including Lafayette Square, in order to enjoy the historic buildings. She routinely uses, enjoys, and drives benefit from the President. Park. A particular focus of President Hougland's tours is the iconic White House complex, which continues to impress after all these years. In addition, as a trustee and an executive

committee, I'm reading from the majority opinion here. I'm reading this is from the majority opinion which held there was standing. She attends board meetings with her frequently held at the Decatur House, a historic property on the northwest corner of Lafayette Square across from the quadrangle. She plans to attend these meetings would happen annually to get to these meetings. She commonly walks across Lafayette Square in front of the White House to enjoy its architectural simplicity. She's also a professional. You're getting the ideas, Sarah. You're getting the idea. Here's where I am on this. It seems to me that the White House is absolutely behind the eight ball on the ballroom. And I want to just say for a moment, guys, I don't care about the ballroom.

Honestly, truly, I do care about the law being followed. I don't care one way or another about whether Donald Trump builds a ballroom. I really honestly, and you're just, and you're You cannot make me care about it. I really honestly, I want the law to be followed. I don't care if there's a ballroom there or not a ballroom there. Let's just follow the law. But it looks to me, Sarah, like given where the Supreme Court standing jurisprudence has been drifting, they're going to need a better standing argument at SCOTUS than that one.

Okay. So by and large agree with you, although I tend to think that the White House does need an event space on campus, so to speak. That being said, David, the amount that I care is pretty low. Right. And I certainly think that Congress could easily appropriate money for that purpose. Just like the Supreme Court justices came to Congress asking for more money for security. This just isn't that hard. you just go to Congress and say, hey, here's the case I want to make.

The White House is having difficulty hosting large events because they either have to be outdoors, their security risk to that. We have to have tents come in. It's actually a very large expense every year. So please appropriate money so we can build a ballroom and authorize such building. That's how this is supposed to work, as far as I'm concerned. Setting aside, by the way, any statutory provisions. That's just intuitively the way it's supposed to work.

There is another statute, David, though, that you didn't read that is where the administration is hanging its hat. This was passed in 1978. So you talked about the 1912, like we have the exclusive authority, go jump off a bridge. So in 1978, they added this language. There are authorized to be appropriated each fiscal year to the president, such sums, as may be necessary for. Okay. The care, maintenance, repair, alteration, refurnishing, improvement, air conditioning, heating, and lighting, including electric power fixtures of the executive residence at the White House, the official expenses of the White House office, the official entertainment expenses of the president, the official entertainment expenses for allocation within the executive offices of the president.

and the subsistence expenses of persons in the government service while traveling on official business in connection with the travel of the president. Okay, so the administration is arguing that this is, you know, somewhere between repair, alteration, improvement. Again, David, as you said, that's not a nonsense argument. No, not a nonsense. But I don't think it's a winning argument.

No, no. You know, you take these words in context, care, lighting, air conditioning, and heating. That does not seem to imply that improvement in this case means tearing down a building, building a whole new building on the complex that is for a totally different purpose. Improvement implies same purpose, better use of that. Knocking down a wall to turn a pantry into a cubicle. Yeah, that's an improvement.

That's a, yeah, or an alteration, right? Maybe, yeah. Yeah, a kitchen renovation would be an alteration and improvement. So all to say, like, again, not a nonsense argument. They have statutory language they're hanging their hat on, but an uphill battle at the Supreme Court, I would argue. The standing thing, though, David, goes so far beyond the ballroom. This is the fight that, frankly, has been between the conservatives and the liberals

since that 2004 Massachusetts VEPA case where, you know, states got special solicitude. And it really was this concept of liberals want to expand standing because at the time, I think, it was viewed as helping liberal causes, right? If conservatives want the status quo and liberals want to change things, then you want to increase the opportunity to come in to change things. Conservatives generally want to restrict standing. They want a really, really strict interpretation of cases and controversies such that, like, you don't actually have an injury because you frequent Lafayette Park and like things the way that they are. Now, I think the whole like liberal versus conservative spectrum on standing has been a little bit flipped on its head.

You see a lot of conservatives wanting more expanded standing for all sorts of different pet projects. liberals now maybe a little bit more like, oh, now we see the problem, like so many other things in our politics. But this case is the most Massachusetts VEPA, except that it doesn't involve a state, but like most traditional standing fight that you can imagine, except for the fact that it's sort of over this like nonsense issue that isn't actually very important. Again, I say very important because I'm talking about the ballroom, not like you said, David, following the law, not the separation of powers

or the relationship between Congress and the president. All of these are very important. The actual ballroom compared to the problems that the country is facing and the ability of the president to walk, walkie, walkie, walkie, down the street to Congress and ask for money, which they would almost certainly grant, is her baffling.

And the thing here, Sarah, is this could very well be a case that is properly decided at the D.C. circuit level, but right for the Supreme Court to intervene. Because if you look at the other DC circuit precedent on standing, including very recent precedent on standing, it's pretty broad. So they referred to a Friends of the Earth case, for example, holding that individuals who lived within driving distance of a river and who fished in it and picked it along its banks had standing to challenge water pollution issue. Center for biological diversions. Center for biological versus Fish and Wildlife Service.

2025, holding that an amateur photographer in intomophile, do we, what is? Who went on annual vacations to view the American burying beetle? Oh, that might answer some of that question. Intomologist, intomophile, sure. Okay. Had standing to challenge a change in its protected status. A 2024 case holding that amateur stargazers and astronomers

who look at the sky for recreation had standing to challenge an environmental assessment of a license permitting satellites that cause light pollution. So you are seeing in the D.C. Circuit realm, 2014, National Trust members who view and enjoy the historic battlefield side of Blair Mountain for purposes of studying and appreciates its history had standing to challenge governmental action affecting its status. So this does appear to be a kind of bog standard D.C. Circuit standing ruling. Now, Judge Rao descends. In every single one of those. I've not done that research, but if she's on the panel, I would bet so. Oh, no, I don't think she's on the panel. She's just dissenting in her heart.

Exactly. Okay, but David, the question comes up, I think, then who has standing? And to that, in this specific case, I think the answer is quite easy and deeply unsatisfying to a number of listeners, which is when you have such a quintessential presidential power versus congressional power, the answer is quite often, to me, nobody has standing. The courts have no role here because each of these branches have tools to use against one another. And Congress, this isn't rock, paper, scissors, where it's like a nice little circle of powers. No, no.

Congress has rock paper scissors nuclear weapon. And so Congress is supposed to win this by impeachment, appropriations, threats of appropriations, oversight, all sorts of other powers. And so I know we've had this conversation in other context before where the standing issue is quite unsatisfying to people in the Trump administration. But yeah, Congress is supposed to have an active role here in policing the president, not the courts. Not every constitutional wrong has a legal remedy because sometimes it is a political injury and not a personal injury that would, would give rise to Article III standing. David, I know you want the law to be followed,

and here I am saying that basically the president cannot follow the law and only Congress can do anything about it, not the courts. Do you accept that? So I am very willing to accept that there are such things as political controversies for which the court has no role. So for example, the classic would be, I believe the war in Iran is unconstitutional. I also believe that I do not have the ability and should not have, should not have the ability to go to the Supreme Court and get an injunction against the war. So I don't think that the Supreme Court has no role. You know, we've had multiple war on terror cases. We had Youngstown Steel. But when it comes to things like should the court enjoin ongoing military operations, I have a bit more of a question on this because one of

my thoughts would be potentially Congress as standing, but then you've got a kind of chicken or egg problem because if you had a majority of the Congress that was going to authorize litigation, then you have a majority of the Congress that's willing to do something about that. And then why do you need litigation? That's why we don't have congressional standing, a member of Congress. I know that's not what you're saying. But like a member of Congress can't go into court and say, I have an injury because I voted for this thing and the president's ignoring what I voted for because it's like, well, if you had a majority of Congress, you would have all the tools available that that branch of government has. Right. So the question would be, should you have, should you have a regime

where in a political fight between Congress and the president, Congress by resolution, being able to authorize litigation? But again, that gets us right back to where we were talking about to begin with. If you have a majority of Congress willing, ready, and able to take action, we have a constitutional political process that gives them, by the way, far more immediate relief than a multi-year litigation. So I am willing to accept that. And this is why, by the way, one of the reasons why these guys stand up and take an oath to the Constitution, right?

So this isn't a sideline part of their job. This is main event stuff. And so if you are a member of Congress and you believe that. the president, regardless of party, is violating the Constitution by overstepping onto congressional prerogatives, then I feel like you have a constitutional obligation to act. And to be clear, we should be electing presidents that we believe will uphold that oath to uphold the Constitution. And perhaps as important or more importantly, we should be electing members of Congress who are going to uphold their oath to uphold the Constitution, which includes

holding presidents and administrations accountable, when do you feel that they are violating the Constitution, which includes the separation of powers? Because again, you don't even have to actually do the appropriation. Oftentimes, you just need to threaten to hold off appropriating or not appropriate money for X, Y, or Z thing that the president wants, and all of a sudden, they come to heal real quick. Because once that money spigot is turned off,

even the threat of turning off the money spigot, presidents tend to like a teenager whose allowance has been cut off or license has been taken. They show up much nicer. The whole attitude really changes. I don't have teenagers yet, but I have a friend who is telling me hilarious stories of a certain senior in high school. You know who you are. And oh, man, hat in hand, David. All right, Sarah, with the ballroom out of the way, it's time to turn our attention to religious freedom.

and what may be or probably won't be one of the more interesting cases of the next term, but we'll get to that after the break. Kia, we make things just for college life, like the Rosenmando blackout curtains in gray. They say you can't put a price on sleep, but we did for the low, low price of $49.99. Why are you in my room?

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One day, you're negotiating with suppliers. The next, you're installing a shelf in the back room. Running a business means moving in many directions all the time. TD's new small business banking accounts are built for how your business moves. It's how we're making banking more human. All right, well, we're waiting on the Supreme Court. There's several things pending at the Supreme Court right now in the emergency docket. The ballroom is pending.

The mail voting executive order is still pending as we record this. That's been pending now for two weeks, David, I believe. What is not pending is the petition for rehearing on the E. Jean Carroll judgment. Correct. The Supreme Court denied that in a long orders list. and it was just in the list. You had to actually notice the case. So bye-bye.

Yeah, yeah. I saw that one. Did not expect any different. Were you surprised at all? No, there was, you know, from what I understand, quite a bit of controversy when the White House asked for the petition, application-free hearing. I'm getting the terminology wrong.

That that was like so not appropriate almost. but they did it and the Supreme Court denied it and it was sort of this freak out in the very, very legal nerdosphere about it. And it's like, I don't know, guys, like the system worked. You can always ask and they can always say no. I'm not particularly offended by asking to rehear a case. So to be clear, rehearing in this case, they just denied it.

So it was like, hey, rehear meeting, rehear the cert petition. And the Supreme Court was like, no, we denied it. We're good, thanks. We saw it. There's no change here. Okay, so I now want to move on to a Supreme Court case we have not talked about. And this one is very interesting to me, Sarah. And it's also interesting for very niche A.O. reasons because this is Friends of the Pod

appealing a ruling by friend of the pod, maybe even judicial crush of the pod for Sarah. And this is an appeal from a Sutton ruling in the Sixth Circuit. How dare you. I know, I know. I know. What are we even doing here? Judge Jeffrey Sutton has never been wrong about anything. And appealing him is an insult to law and all that is good. So here is the case.

And I'm reading from Judge Sutton's opinion at the Sixth Circuit. Masterful opinion. Judge Sutton's, if I weep during it, like if I just kind of choke up, just... It's the natural reaction. Just forgive me for five seconds. Okay. So here is the situation. Daniel Grant lives in University of Heights, Ohio. At 2021, he applied for a special use permit to use his home as a place of religious assembly under the local zoning laws. Before city officials could finally resolve his position, Grand withdrew the request stating that he did not wish to operate a house of worship as is defined under the zoning ordinance. He nonetheless filed this federal lawsuit against the city and several officials ruling an assortment of statutory and constitutional claims, the district court granted summary judgment for the city and its officials on the ground that some

of grand's challenges were unripe. We affirm. Okay. So here's the basic factual pattern. Daniel and his family live in university heights. His orthodox Jewish faith requires him to pray thrice daily with a group of 10 men, what's known as a minion in Hebrew. And please forgive me if I butcher that pronunciation. Minion. Minion. Like the movie. Okay. As a minion. Okay. His faith, forbids him for driving on the Sabbath, which makes traveling to and from synagogues difficult. To more easily and more seriously pray on the Sabbath, Grand began inviting friends to pray with him on the holy day. To that end, he emailed around 12 of his neighbors, inviting them to three prayer sessions for the inauguration of the, and I am absolutely not going to even try to pronounce what that is.

The invitation referred to the event as a shul, which in Hebrew refers to a synagogue or a house where prayer groups were held. Grant introduced a rabbi for the event and asked guests to spread the word and consider bringing someone with you. A displeased neighbor forwarded Grant's email to University Heights Mayor Michael Brennan, who forwarded it to University Heights Law Director Luke McConville. McConville emailed Grant a cease and desist order and told him to stop violating the city's zoning laws. The letter informed, Graham, that the city has been made aware that he intends to use his house as a place of religious worship. Grant's house wasn't zoned for that. And the use of the premises is a place of religious assembly or an operation of a shul or synagogue

violates the local ordinances. It could result in building cold citations, et cetera. So then he applies to use a special use permit. And he goes through the process to at least to some degree. And so he then goes through the process. And in his application, Grand indicated they had 11 tables, 21 chairs, and he wanted to use the room for periodic religious gatherings. So the planning mission holds a public hearing on the application. Through counsel, Grant described his plans for a men's only prayer group to meet once a week and on certain high holidays. He did not dispute that the proposed use would render his home a place of religious assembly, but he distinguished his proposal from the usual image of a formal synagogue. Some of the neighbors spoke against a proposal on the

grounds that Grant understated the size of the gatherings that he had advertised the meetings on the internet. His proposal could create traffic, fire, and parking issues. And pointed out that the prayer group could not be the source of parking problems as members of religion can't drive on the Sabbath. Pretty good rebuttal. Pretty good rebuttal. Planning Commission table discussion requesting more details. In an e-mails exchange after the meeting, some members of the commission doubted whether Grant's use would constitute a house of worship, wondered whether he needed a permit at all. But before the second hearing, Grand withdrew his application. I do not wish to operate a house worship, he stated, as it is defined under the

zoning ordinance. The commission still held the meeting as planned. The mayor emphasized a grant could not operate a house to worship without a permit. And also at that time, there were some incidents, for example, patrol units were directed to drive past his house. A city prosecutor sought to investigate housing code violations inside the house with the permission of the wife, a house, a grand's wife, a housing inspector searched the house for violations, didn't find any. Eighteen months after withdrawing his application for zoning variance, he files a lawsuit. Very simple reason why this one was dismissed. There was no finality in the zoning process that he did not go through.

It's not that it's required to go through the entirety of the process. He did not achieve a resolution in the process before he filed. And Judge Sutton essentially says, unless you get the resolution, we don't know what action is being challenged. What is the resolution here? What is the actual city action? The plaintiff says in response, essentially, this is chilling effect. You had a season-de-siss letter before anything that happened. You had public officials going outside the house.

You had a city prosecutor getting inside the house. You had a lot going on here that basically says the fix is in. And Judge Sutton acknowledges that futility can be a form of finality. but in this situation, in this circumstance, there has been not sufficient finality. And so, Sarah, this is a very interesting case. This is Judge Sutton very much, you know, somebody that you would look at and historically look at his jurisprudence and say this is a judge who has been very friendly to religious liberty claims. This is an appeal on religious liberty grounds going to a very friendly religious liberty court, one so friendly that there hasn't been what you would call a really substantial or meaningful religious liberty.

lost at this court for, wow, goodness, more than 15 years. But here we are. This is the case. Again, thoughts, reflections. David, there's another little fun footnote here. When Grant filed his appeal at the Supreme Court, he did it pro se. He didn't file with an attorney when he initially filed his cert petition. But then the court asked for a response from the city and then, that's when, obviously, in his reply brief, all the lawyers showed up. Oh, yeah. I don't know, David. If this is just a case on ripeness, it's not that interesting a case.

I mean, it's a ripeness is interesting to me. And I'm sure it will be fascinating to all of our A.O. listeners. But in that case, it's not really a case about religious liberty at all. If it's a case on zoning versus religious liberty, that's super interesting to me. but like oftentimes a really like coin flip thing. I mean, I'm in the land of no zoning now and I love my no zoning city. Yeah.

But if you're going to have zoning laws, then there's a purpose to them. And like I got the like, ha-ha parking thing. But that does mean a lot of Uber's are coming in the neighborhood. Like that's why you have zoning laws, right? To like prevent basically commercial or high traffic things

from starting up in residential neighborhoods. That being said, you also have the side, you know, what about your Tuesday night fellowship? That has a bunch of people coming to it and I don't see anyone complaining about that or claiming that that's now, you know, needs a permit to hold a religious church-esque permit to do small group fellowship. And small group, by the way, can be pretty freaking big, I think. Yeah.

You know, same with your book club, et cetera. We had about a 12-person small group meeting at our house, you know, depending on, you know, if everyone came or if, you know, a guest came or a family member, extra family member came, we could be between 10, 8, 10, 16 people every week, every single week. So super interesting case, but one version of this case is legal nerdery on ripeness. and one version of this case is like sort of the big fireworks show of zoning ordinances versus religious liberty. You know, and a lot of these cases now feel to me almost like, to use a military analogy, there's a term called a mop-up operation. And that's when you've won the battle, but there are pockets of resistance in the battlefield

and you mop them up. You get rid of the final remaining lingering of pockets of resistance. And it feels to me like on multiple religious liberty grounds, you've had the big battle won. So, for example, land use, religious land use. That big battle was won when Raluppa was passed, religious land use and institutionalized persons act. All of a sudden, what you did nationwide was give the, you gave property owners immense legal. really you really tilted the legal playing field in favor of religious land land use and just a now not entirely not completely as a judge Sutton says

you can't just put it say a 3,000 seat worship or you know like worship arena in your backyard I mean there's going to be limits but as a general manner the law is very squarely on the side of religious land use what are the limits here how how how You know, how much is it on your side as opposed to is it on your side seems to be a lot where a lot of the religious liberty cases are moving in this direction? Is it going to go as far or this far and not far enough? But either way, it's, you know, we're in a fundamentally different place than we were 25, 30 years ago. David, here's my prediction. So the QP of this case is whether the First Amendment's established chilling effect doctrine, under which a credible

government threat that deters the exercise of fundamental rights constitutes a complete and independently actionable constitutional injury, is displaced by the land use finality requirement that you talked about, David. My prediction is this case looks a lot more like the women's choice case from last term, which was on the state subpoenas going into federal court. And there the Supreme Court held that, yep, you could go into federal court because of the chilling effect of the state use of subpoenas for the purpose of chilling protected speech in that case. This was the case about the crisis pregnancy centers and the New Jersey Attorney General tried to use the subpoenas to, you know, rough them up a little, if you will, in a New Jersey term. And they were able to point to the fact that, like, look, they're subpoenaing like our donor lists. there was never even a complaint. And they're claiming that, like, there was fraud because our donors

think we provide abortion services. Like, no, no donor thinks that. Like, our donors aren't stupid. And the Supreme Court was basically like, we're not ruling on whether the subpoena is valid or not, but we are saying you do have an injury in fact to get into federal court because of this potential chilling effect. So, David, I do wonder whether this will be sort of part two of that, that like the city, for instance, showing up at your house to suddenly do a ordinance check inside your home when you withdrew your application does appear to be for the purpose of, you know, chilling a fundamental rate of religious exercise. Maybe. I don't know. The fact that they took the case, like we've said before, means about a 70% chance

that they're going to flip Judge Sutton's opinion that this wasn't ripe. But on the other hand, like, when is Judge Sutton ever wrong? Sarah, is there such a thing as blind faith in the legal world? Sutton doesn't lose at the Supreme Court. I don't have these statistics right in front of me,

but like, the dude wins, you know? Right, right. Yeah, I was very interested because the first thing that my eyes go to when I'm looking at an appeal from a lower court decision that's been granted by the Supreme Court, first thing my eyes do is they go to the name of the circuit judge who wrote the opinion. And as soon as my eyes fell on Sutton, Chief Judge, I was like, oh, because I just read the SCOTUS blog page that had the list of amici. And in favor, so you have Pacific Justice, Protect the First Foundation, American Center for Law and Justice, National Jewish Advocacy Center. Advancing American Freedom, Manhattan Institute, United States Conference of Catholic Bishops.

Like this is like... The Islam and Religious Freedom Action Team of the Religious Freedom Institute. This is Battleship Row of your First Amendment religious liberty advocates and a Judge Sutton opinion. That's not the normal lineup, right? That's not the normal thing. So I am very interested to see how this case goes. Well, more to come on that. All right. Now on to kind of a bit of for advisory opinions, at least institutionally a repeat conversation. But for us, Sarah and David, a new conversation about some interesting polling

data from Marquette and our trashy case. All that is coming after the break. The first ever All-Electric 26 Subaru Trail Seeker is the EV for the trail obsessed, with up to 444 kilometers on a full charge and DC fast. charging from 10 to 80% in about 30 minutes in ideal conditions. Plus, ample ground clearance and symmetrical all-wheel drive make the 2026 Trail Seeker the most capable EV Subaru has ever built. Test drive it at your local Subaru dealer or visit Subaru.ca. Hear that?

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You're richer than you think. Before we get to the trashy part of the podcast, can we talk a little bit of... I don't even know where this is headed. I hope you're referring to actual trash. No, you know where this is headed, and you'll be reminded very shortly. But before we get to the trashy part of this podcast,

let's do a little Supreme Court pull. polling that I think it is very interesting. Okay, so Marquette Law School poll, this came out earlier this month, August 5th, finds national approval of the Supreme Court now at 47 percent, has remained below 50 percent since November 2025. Now, just real quick on that, by the standards of institutional approval, like we're grading on a curve here, that's actually reasonably high, just by the standards of institutional approval of American branches of government. But it breaks down like this, 47% approval, all adults, 74% Republican, 35% independent, 22% Democratic, which is kind of how you expect this. And you would expect to be kind, you would sort of see a partisan shift if the

court was, you know, you would see that flip exactly if it was 6-3, the court was 6-3 in the other way. But here's what I thought was interesting. So, does the court rule for Trump often, fairly often? Rarely, never. Okay, and these were the numbers that were interesting to me. Court rules for Trump. Democratic numbers, 77% said often or fairly often. 23% said rarely or never. Now, I don't know about you, Sarah, but I'm kind of surprised that 23% of Democrats said that it rarely or never rules for Trump.

Here are the Republican numbers. In May of 26, 45% of the Republicans said that it ruled for Trump often or fairly often. 55% said, rarely or never. By July of 26, court rules for Trump often fairly often 37 percent, rarely or never, 63 percent of Republicans say the court rules for Trump rarely or never. I know we talk a lot about bubbles and I do think that sometimes when we talk about media bubbles, we can overstate things. But that's remarkable to me.

Okay. That's remarkable to me. So, you know, David Latt, our fill-in host, he talked about this with Adam and Zach last week. Here's my question to you, David. How would you have answered that? A pollster calls you. I would have answered fairly often. I mean, if those are my two often, I would have fallen on the fairly often side of that. Okay. Not on the rarely or never. Yeah, no, I think I'm with you. I guess I think that I would have had sort of a hard time answering the question because it's like, I don't know, it depends on the law. Like, it's a really politically relevant question.

It's not legally a particularly good question. Right, of course. Yeah. But yeah, I think the answer is either sometimes or it depends if it's important, in which case they rule against it. Is it on the merits docket or the shadow docket? I know. Yeah. Not a lot of room for nuance in these questions, but I thought that was fascinating. Well, because I continue to come, I continue to encounter people who are smart, who are left of center, who are smart, who followed this stuff very closely, who can talk to you about cases by case name.

So they're sort of above the learning curve, power curve of your average citizen who would just look me straight in the face and be like, yeah, the court is in Trump's pocket. And then you have 63% of Republicans here saying the court rarely or never rules for Trump. So that's a remarkable thing. My pushback to you is that I don't think it's remarkable. I mean, we're remarking on it. So I guess in the Jonah Goldberg literal sense of the term, it is remarkable. We are able to remark on it. Is it unusual?

It is, is it a historical, you know, standout? I just don't think that in American history, there has been a time where people have separated the Supreme Court from their politics. And again, like you go back to the Jefferson administration, the complaints that you read that members of the educated public had about the Supreme Court, not like randos on the street, sound identical. The court is too powerful. The court is too partisan.

The court is thwarting the will of the American people. Although, my God, David, that's like sort of the most fun part of the poll. Yeah. All of these people saying how much they hate. the Supreme Court because it either rules too much or too little for Donald Trump, depending on your political preferences, but also they entirely agree with all of the decisions. It's amazing. Let's get to that. Let's get to that. Okay. So they walk through the dozen or so most important, you know, the big cases. The most popular Supreme Court opinion, an 8119, 819, do you favor

or oppose, do favor limiting police access to cell phone location data, 81 to 19 in favor? 7030, president may not remove a member of the Federal Reserve. 6634, reject the appeal of the E. Jean Carroll verdict. 6634, Trump imposing tariffs. 6535, states may ban transgender athletes in women's sports. 6337, uphold birthright citizenship. 62.38, count late arriving ballots. 61.49.

Federal law may not ban guns for drug users. That one, I fell out of my chair. Yeah. Did that surprise you? You know, it's interesting. Like, all of these basically surprised me in some ways. And I was like, I do wonder if there's like a, you know, phrasing matters here. And obviously these are phrased and very like outcome focused, less legally focused questions.

But get to get to slaughter. Okay. Voting Rights Act shall not, does not, that's not slaughter. But we're going, we're marching down from most popular to least. Voting Rights Act does not require a majority minority districts. 5347. Now we're getting into the close. Allow restrictions on asylum seekers. 5149.

State may not ban conversion therapy. I skip that one. 47. President may remove heads of independent agencies. Forty-five-one. That's the first unpopular one, and it's 49-51, which to me is, anytime you see that in polling, it's, what do you see two points? It's 50-50. I mean, it's margin of error. Allow parties to coordinate with candidate campaigns, 4753. That was the least popular. I know. And it was 4753. I know. The Supreme Court's so unpopular right now, except for all their decisions. What? I know. I know. It's absolutely fascinating. And I honestly think, you hit the nail on the head, any question for which there's a partisan valence, it's going to immediately

begin to default to everyone's going to retreat to their corners. So, even though a majority of Republicans say Trump rarely or never wins, they still approve of the Supreme Court by about 75 percent because it is now seen, I think, as a Republican institution because it's 6-3 Republican-nominated and confirmed justices. So I think you're right. They retreat to their partisan, but I do also wonder if there is now, we're reading, reaching a point of reflexive no. If the answer is, do you trust dot, dot, dot. the rebuttable presumption is you're going to answer that question in public opinion polling. You're just, unless it's an institution that for some reason has given you specific reason to trust it,

or there are a lot of legacy trust? There's a lot of legacy trust. I think there's just a lot of reflexive knowing going on. Well, this, of course, is my problem with issue polling, and I will give my brief recitation of it. When it comes to who will you vote for in the upcoming election, there is then, you know, we find out the result, right? You can check it against the actual outcome. I'm not saying that's perfect. People can change their minds, late breaking news, et cetera. But generally speaking, we can judge the quality of the polling by what happens when people do the thing they were asked what they're going to do. That's just not true in issue polling. There is never a report card at the end of the semester on issue polling. And so you think people, so that's one problem. No report card. We know,

ever get to tweak the inputs based on what we know of the outputs. Problem number two is that it is a sort of known question if the election were held today, which of these candidates would you vote for? Voting is a thing that people do and you have to pick one of the candidates. So the question is very well phrased to get the answer that you're looking for. Do you agree or disagree with the following statement, you, the pollster, think you're asking one question. Me, the respondent, may think I'm answering a very different question. For instance, you know, do you agree or disagree with President Trump's execution of the war in Iran to date? You think you're asking about, you know, tactics in the war or whatever. A person may be answering

approval for Donald Trump, support for Donald Trump. They may be answering whether they are okay with the current rise in gas prices, as in the question isn't an actual thing that people do and therefore you never really know what they're answering. I think that is super true, like you said, David, for institutional approvals. If you are just mad and think the government is being poorly run, there's a reason we see the Supreme Court's approval numbers

change with a new presidential administration. It makes no sense. But again, the people who were... answering the questions often aren't answering whether they approve or disapprove of the Supreme Court. They're answering whether they approve or disapprove of the party and power of the White House. Yep. And that's why when Joe Biden came into the White House, the approval for the Supreme Court among Democrats went up. Yep. Yep. Same court. Same court. Same court. So you're exactly right that you have to separate out all of these when you're asking people about the

the Supreme Court and Donald Trump, they are answering about Donald Trump more than the Supreme Court. They don't actually know how much the Supreme Court has, they're not keeping some sort of tally at their home. That's why you and I don't have a great answer to the question, even if we were asked that question. What they're answering is about Donald Trump. If you don't like Donald Trump, then you say they're a ruling for him way too much because any amount of ruling for Donald Trump is way too much, basically. When you ask about approval for the Supreme Court, you are answering about institutions as a whole, as you said, David, and whether you think those institutions are politically doing what you want,

which is why you've seen the Supreme Court drop more among Republicans that are driving down the current approval numbers for the Supreme Court. And then lastly, on the individual cases, you're not asking about the law. Like, let's take the least popular case, letting political parties coordinate more freely with candidate campaigns. you're asking about campaign finance. Do you think we should have less money in politics? A lot of people said, yeah, I want less money in politics.

So I think the case answers are the most interesting. I think that's the one you're getting closest to people's actual feeling about the issues at stake, not the law at stake. And there, the Supreme Court is doing really well, which actually should be a little bit concerning because it's supposed to be counter-majoritarian. So the one area where they're doing well is the one area that I'm like, wait, that should make me a little queasy. Yeah, it's so fascinating because, yes, the Supreme Court is really our counter-majoritarian institution, which seems to be, and this, by the way, these polling results are not aberrational. Term after term after term. Yep.

Again and again and again and again. And here's what's interesting. Really, I would be. fascinated to read the same poll, but not of the general public, but of journalists, academics, etc. People work at NGOs, because it weirdly, the Supreme Court in many ways as our most elite public institution. Nine people, every one of them credentialed out the wazoo. You know, there's very little chance of like, you know, you can become, you can be like a, you can, you can be like an exterminator in a rural county in Alabama and run for Congress in many years, become the chairman of the House Armed

Services Committee. Like, you can be, you can, and it's part of the glory of our democracy, that you can be an ordinary average American, and there is a path for you to power through the democratic process. It's part of the appeal of, you know, the American experiment. But that's not the case with the Supreme Court. But in a weird way, our most elite institution I would submit is actually become the most counter-elite. That a lot of the opinions here and decisions here are very much counter-elite consensus, not counter-majoritarian consensus. Ooh, ooh, counter-majoritarian, but what majority?

Yeah. Which, by the way, if you told people the Supreme Court is counter-elite-majorative. I think a lot of people on all sides of the political spectrum would sign up for that institution. Just don't tell them the name of it or who's on it. Yeah, exactly. There is an institution in American government that is constantly demolishing elite consensus, constantly. Yeah. And it's the Supreme Court.

But it's also constantly, in recent years anyway, been kind of majoritarian. It just fascinates me, Sarah. It fascinates me. All right. Let's do some trashy stuff. Yeah, we've got some trash here. I need to remember to take out the trash. Trash is on a new day here, and do you don't know how hard it's going to be for me to learn when to take out the trash?

Okay. So, you know, we, you know, we're a podcast that focuses on the most important legal decisions. This is not a populist podcast. The motto of the podcast is not give the people what they want. That's not it. But I do get very consistent and persistent and interesting questions. and from listeners just sort of out in the world who know that we are, this is a, you know, this is a podcast that if you listen to us,

we are, both Sarah and I are very free expression oriented, very much protective of free speech in the First Amendment. Guys, I have no idea where this is going. How is the Hulk Hogan demolition of Gawker consistent with the First Amendment? This is a very famous moment when the, uh, the sex tape that Gawker published the Hulk Hogan sex tape. Hul Cogan sued Gawker into the ground. People were like, wait a minute.

Hul Cogan was a public figure, et cetera. How can Hulcogen sue Gawker? Is there a news hook coming? Because that was a long time ago. Let me read you a fact pattern. Okay. Of in a, in the Court of Appeal of the State of California, second appellate district, Division 8.

Sarah, I don't know if we've quoted from this court of appeals yet. This action arises out of the discovery of a private sexual affair which garnered widespread media attention when the news of the affair came public. Plaintiff and respondent Rachel Levis had an affair with Tom Sandoval, the then-boyfriend and defendant of Ariana Maddox. At the time, Levis, Maddox, and Sandoval's were all cast members of the reality television show Bander Pump Rules. When Maddox learned of the affair, when she found sexually explicit videos of Levis on

Sandoval's cell phone, which Maddox then recorded and sent to Levis, after the affair became public. Levis filed suit against Maddox for Maddox's alleged conduct in accessing, copying, and disseminating the videos. Maddox filed a special motion to strike under Code of Civil Procedure for 25.16, which the trial court denied, we conclude that Maddox was not entitled to relief. She failed to meet her burden of establishing the claims alleged against her arose from constitutionally protected activity. So the question here is very similar. You have not a professional wrestling star, but you have reality TV stars in Vanderpump rules. One of them discovers an affair, makes a video, sort of like a screen record video of what they saw,

sends it to the other party of this particular love triangle and is later sued for accessing this information and sending it. And it's fascinating, Sarah, because what I found interesting about this is it really does dive into, like, how much privacy do you have as basically as a baseline citizen is a revenge porn statute, for example, constitutional, and how much privacy do you still possess when you become a celebrity? And the long and short of it is that in California, at least, they place a matter, is this a matter of sort of what you might call public concern, not exactly like the Pickering test, but sort of similar to the Pickering test. And the fact that somebody's sex life can become a matter of public concern does not mean

that it is a matter of public concern at the insemination, at the beginning. Frazing. Sorry, at the beginning of the incident. And I just found that it was an interesting case because you would be surprised how many times. And I don't know about you, but I get asked this. asked this by college students. I get asked this by law students. I get asked this by just people in the world. And I thought it was a, you know, at least worth a mention. Boy, I feel like you spent the whole podcast trying to find something I would care about less than the ballroom.

I'm so sorry. And you've nailed it. So. But revenge porn is a very big deal. No, it is. This is actually a very, very big deal. This is arguably more important than the ballroom. substantively in terms of the number of people that it will affect. But I guess I still have the same question, David, which is privacy versus the First Amendment. Why doesn't the First Amendment win? Like if I set aside the video for a second, if I just went out and said Bob is having an affair with Stacey,

I don't see why I don't have every First Amendment right to say that in a coffee shop. right? And not if it's not defamatory. It's true. Let's stipulate. Yeah. We're stipulating is true. Yeah.

Bob is having an affair with Stacy. So I can go to a coffee shop and I can tell that to people, First Amendment protected. Can I put a yard sign in front of my house on my property that says Bob is having an affair with Stacey? Like keep backing up from that. And like a lot of this is First Amendment protected, maybe what you're saying is until you get to the actual revenge. porn, but then that to me says it's something about the revenge porn, not about the information contained in the revenge porn, that that is still First Amendment protected information. Bob is having an affair with Stacy.

Bingo. It is the video of, you know, naked Bob doing his best work. And that... David's imagining Bob. And you're right, David, this is a May, December, relationship I'm imagining with Bob and Stacy. That's why Bob has the name Bob and, you know, whatever. But like, it's not then about the information. It is about something else. And that's something else, I think we would describe as obscene or not containing information,

additional information, right? We already know Bob's having the affair with Stacy. What additional information are you gleaning from this? But apply that to, I don't know, all sorts of of other things that we say, yeah, the video did provide additional information because that's what made it relevant to people, colorful to people. I have a First Amendment right to videotape government employees doing their jobs, for instance. So why is revenge porn not protected the same way as that? Well, you know, there are common law invasion of privacy issues and concerns here. And I've long said that if you want to understand sort of originalism in the First Amendment, common law is absolutely critical to that because you have forever defamation has not been considered part of quote

unquote the freedom of speech. So there is sort of an invasion. There is a privacy zone that does exist. And it's almost Sarah like you wrote the opinion for Michael's versus entertainment group, the key authority here, which is the Brett Michaels Pamela Anderson Lee video from the 1990s. And here's the quote that is almost like channeling this exactly what you said. private matter at issue here is not the fact that Lee and Michaels were romantically involved. Because they sought fame, Lee and Michaels must tolerate some public exposure of the fact of their involvement. The fact recorded on the tape, however, is not that Lee and Michaels were romantically involved, but rather the visual and oral details of their sexual relations, facts which are

ordinarily considered private event for celebrities. I've never heard you work so hard to pronounce a word that can often be a homonym with another word. I did a good job, didn't I? No one can mistake, Aral. Aral, yes. But yes. Yes. So that is your answer, boys and girls, ladies and gentlemen.

It is not the fact that Hulk Hogan had an affair with Bubba the Love Spunge's wives or the Vanderpup rules couple love triangle existed. These facts are not things that can necessarily be concealed or protected from the public under that zone of privacy. But the actual visual details, there is still that does exist. Okay, let me give you another example. Now, but again, it's not unlimited. Right. Yeah.

So in my new example, this isn't a sex tape. this is something more like the kiss cam where you are doing something that is obscene in any way and you've done it in public but the fact that you're having an affair isn't necessary to then have the video of it but I think we would all say that video is still like they can't sue about the video.

Now again you have to separate out some of the property stuff here like they were in a stadium they had by accepting the ticket like set all of that aside maybe the better example, is the two lawyers who were canoodling in Central Park and were filmed by a private person, but they were in a public park for their canoodling. Yeah. Very doubtful that that would be, even if you're doing a very classic invasion of privacy-type tort claim, that's not going to fly if you're in Central Park. Okay, but David, what if, you know, you're behind the bushes and you're having sex in Central Park and you tape it? So it's very,

revenge porn, but it's in a public place. I'm saying there's an assumption of risk element there. If you were in Central Park in the most populated city in the United States of America, yeah. I'm saying you've got your, you've got your assumption of risk happening there. This is a heck of an issue, spotter, because I feel like this is one of those examples where common sense is really easy to apply, but the actual sort of legal parsing, I think, is more difficult. No, I, as with all things in the law, it's, you have your generalities, your general truths that begin to break down at the edges around your specific hypotheticals. But I do think this

was an interesting case because you do have a very significant, I mean, this is one of the reasons why revenge porn statutes are being passed. You do have a very significant problem with revenge porn in America, which is just gross and disgusting that we even have to pass these things. But when it comes to public figures, especially public figures in a very poor and saturated society, you know, there's often questions, are these things leaked or are they, air quotes, leaked? Is this something that is truly an invasion of privacy or are you dealing with elaborate publicity stunts? These are all questions that often come up in this context. But this is an answer to that question. in the real world, the fact of a person's celebrity does not vitiate all of their common law

privacy rights. But the insemination of the idea. No, just kidding. Okay. We're done. So there it is. There it is. The podcast, this rare role reversal, this is a, this is a, like a blast from the past.

The more recent advisory opinions listeners are now realizing why Sarah hosts. So this has been a blast to the like the first half of the advisory opinions lifespan so far. I will get my act together, but I have to tell you, David, today was not the day. And it shouldn't have to be, Sarah. Moving is horrible. But we'll be back next time. I'm not guaranteeing that Sarah will host, but I will say, tune in to see who does. And it will tell you so much about how my life is going.

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