Strict Scrutiny - SCOTUS Greenlights Trump's Ballroom

Episode Date: September 1, 2026

In this bonus episode, Leah and Melissa break down the Supreme Court’s decision to let Trump move forward with plans for a White House ballroom, despite lower courts finding that the project cannot proceed without congressional authorization and appropriated funds. They also discuss a whistleblower’s allegations that the federal government is defying court orders on voting by mail, and new reporting from Jodi Kantor on the Supreme Court’s secretive policies governing when the justices’ papers and internal records will be made public. Take the Strict Scrutiny survey. New Strict merch available here. You can now listen to Strict Scrutiny for CLE credits in California, New York, Texas, Pennsylvania, Illinois, Virginia, North Carolina, Georgia, Washington, and Oregon! More info at crooked.com/strict_cle Get tickets for STRICT SCRUTINY LIVE on November 6th in Washington, DC: Crookedcon.com Buy Melissa’s book, The U.S. Constitution: A Comprehensive and Annotated Guide for the Modern Reader Buy Leah’s book, Lawless, now out in paperback Follow us on Instagram, Threads, and Bluesky For a transcript of an episode of Strict Scrutiny please email [e-mail] 

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Visit AU.org slash crooked to learn more and join the fight today. Mr. Chief Justice, please support. It's an old joke, but when I argue, men argues against two beautiful ladies like this, they're going to have the last word. She spoke not elegantly, but with unmistakable. clarity, she said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our legs. Hi, everyone, here's the deal. We plan to take Labor Day off. It's a holiday. And unlike some people, cough, one first street, we're not anti-union. Unfortunately, the Supreme Court always stays on its hustle

of doing the most and being the worst, which means we've got to stay on ours. Hence the bonus episode today. Can't stop, won't stop. Can't stop, won't stop, never, ever. Think of it this way. We announced hot SCOTUS reform September, and then the Supreme Court decided to make it really easy on us by helping us make the case for SCOTUS reform. So before this Thursday's first episode of Hot SCOTUS Reform September, we bring you this bonus episode. Because listeners, the Supreme Court really did it this time. They indulged Mad King Donald Trump's edifice complex. They are letting him have his gold. gilded ballroom, and they are allowing him to use our taxpayer dollars to fund this ballroom. And they did it in part because we all know that Donald Trump is a very special boy, and he needs a very special ballroom, and also national security. Not surprisingly, listeners, there were some casualties along the way. Fiscal conservatism definitely caught some strays, but so too did standing doctrine and a justice Scalia opinion on standing. So yes, folks, you heard that right. These committed conservatives did not have any

qualms whatsoever about sacrificing the patron saint of the conservative legal movement on the altar of Donald J. Trump's belly special ballroom. So TLDR, the Scalia opinion and the doctrine of standing are for suckers, much like stare decisis, so in case you're keeping score at home, stare decisis, Scalia opinions, and standing, all for suckers. Here's the background. Donald Trump decided on his own without congressional authorization, as one does, to tear down part of the White House. The White House is the People's House. It's not his. He doesn't own it. It is a federal holding. You know how we know he doesn't own it? Hmm, how? Because it's not literally covered in fucking gold everything. That's how we know it's not his. Well, it's about to be. Well, that's true,

but now it isn't here. And he decided to remake it in the image of Mar-a-Lago. He wants to remake the People's House the White House, the house that Dolly Madison first lived in, the first, first lady to live there, the lady who took all of the paintings out when they were being attacked during the war of 1812. He's going to take that house, the people's house, and he's going to remake it in the image of his casinos, his garish resorts, and maybe Versailles, not the real Versailles, but that Florida Versailles that was the subject of that documentary. Was it Marie Antoinette who said, Separation of powers? No, let them do Coke off of gold toilet seats. You know, is that Marie Antoinette? Did I get that right? I think that might have been her, but I do think this is more of a special K crowd, to be honest, than a Coke crowd. But well, I'm coming to you live from the Department of Health and Human Services and I would like a word. So maybe. That's fair. It's hard to say. This isn't a DHS special, though. But Donald Trump decided, again, to be clear on his own without congressional authorization. that he wanted a ballroom. He wanted a ballroom both because he wanted to throw some sick parties at the White House,

but also because his administration was sure to add because of national security. National security is very broadly used here, and I just want to emphasize that. Like, we don't understand exactly what national security means for these purposes, but it basically means you get to do what you want. It's basically a get-out-of-jail-free card for everything, I think. Anyway, all of this is to say that what the president is doing, is illegal many times over. There is no congressional authorization to spend money to tear down a portion of the White House and build a wallroom, right? The president is basically appropriating Congress's power of the purse to feed his edifice complex. That's what's going on here. There's also no congressional authorization to repurpose this federal building, federal property, into a ballroom. So it's kind of like

defacing public property. You know, I cannot walk up to the Lincoln Memorial and decide to raise it and erect a monument to Olivia Rodriguez and the Daisy Chain Festival because national security. But that's what Donald Trump did. It won't be Olivia Rodriguez, but like we might see the Lincoln Memorial go down. Kid, that's exactly what I was thinking, like a big statue of Kid Rock. Yeah, our special cake crowd. In any event, on Monday evening, five Republican justices said, what is the separation of powers anyway? Is this separation of powers? No. Instead, we need to build baby build. And again, we know that they are abundance bros and one sis, and they got down to it.

But here's the rub, folks. They did this in the most craven way possible, because of course they did. Despite allowing Donald Trump to go ahead with this monstrosity of a ballroom, the court couldn't actually bring themselves to say that It is totally lawful and constitutional to allow a president to raise the White House and create a gilded ballroom in its place. Because even the Supreme Court in its conservative supermajority, or at least in this case a conservative majority, are not quite that delusional. What they're basically saying here is that the plaintiffs here did not have standing to bring this lawsuit. And that raises the very pertinent question of whether there's anyone who could bring this lawsuit. So who would have standing to challenge this nonsense? I'm just spitballing here.

I mean, I think really the only candidate is Congress. And L-O-L-O-L-O-L-L-L because we all know that this Congress is not going to do that. Yeah, what is the Congress? Now you can see why it's so craven. The National Historic Trust doesn't have standing. No taxpayer would have standing because federal taxpayers don't have standing to argue that their federal taxpayer dollars are being spent illegally. So it's left. doing it all the time. We would be doing all the time. So it's left to this boot-looking Congress

to challenge it, which the court knows will not happen. So despite knowing that Donald Trump probably could not prevail on the merits, they let him get away with it by fucking around on standing. Can I just say it's not the first time they've used these procedural justiciability doctrines to avoid getting to the heart of a matter and basically saying that the president can't do something. Instead, they fuck around with these justiciability doctrines and they allow him to go forward. They did it just the other day with the Postal Service order where they said that the case had not been brought at the right time, that it wasn't ripe, leaving aside the very pertinent question, can a president come in and fuck around with elections?

The Constitution says, no. They don't get to that question, though, because they never get to jurisdiction because there is no jurisdiction because it's not ripe or there's no standing. And then the president gets to go on TV and talk about how he won in the Supreme Court. And it's just insane. Anyway, the lower courts had here correctly concluded that it is illegal for the president to raise a portion of the White House and construct a ballroom with taxpayer dollars that have not been appropriated by Congress or authorized by Congress for that use. Basically, the lower courts shorter. Another word for what the president is doing is theft. But then, as always, the president and his administration ran off to the Supreme Court and said, Daddy Scudas, please help us. Please let us raise

the White House and put up our ballroom. And as almost always is the case, the Supreme Court, on the shadow docket with very little explanation, decided to block the lower court orders and clear the way for the destruction of the White House, all because, as we all know, Donald Trump is a very special boy, by which we mean he is a Republican president and because national security. The decision was a five to four decision, the justices who decided to stand ten toes down on separation of powers and Congress's authority to appropriate monies were justices Sotomayor, Kagan, and Jackson, joined by wait for it, another special boy, John G. Roberts. How did John G. Roberts come to join the sanity caucus? I just don't know. Maybe it's because it didn't

matter at all. That part. Conservative supermajorities are going to supermajority, and John G. Roberts decided that now would be a convenient time to stand up for the Constitution. we are not going to be giving him too much credit for standing up to the president when it didn't actually matter to the outcome, because not only did it not really matter, all of this is kind of his, that is John G. Roberts' fault. See Trump v. United States, the immunity opinion. If you are going to give the president kingly powers, you probably should not be shocked if the president acts like a king. Roberts created this multi-headed monster. He both helped make a lawless executive and a Supreme Court that enables a lawless executive specifically on the shadow docket and more.

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Head to M-Y-A-L-L-O-Y.com and use code strict to get $20 off your first order. The reasoning in the court's very short opinion is actually pretty revealing here. The court, again, issued a procurium opinion, meaning that they don't actually indicate who is the author of the opinion. Again, a very craven move. Although I think there are some very telling signs that maybe one Neil Gorsuch. has his hand in the honeypot ear. It's Neil Gorsuch or Brett Kavanaugh or one of them with an assist from the other. I don't know if it's Brett Kavanaugh because it was written in ink.

And so it's just hard to say. Well, that's why I said with an assist from Neil Gorsuch, right? Brett could do some finger painting and then Neil could translate for him. He did the dictation and Neil writes it all down. Yes. Neil could be the scribe here. In any event, the very first sentence of this percurium opinion reveals the absolute audacity of the Supreme Court's entire project of expanding executive power. So the court writes, quote, in October 2025,

the federal government started a project to replace the east wing of the White House. Come again, excuse me, the federal government did no such fucking thing. The executive branch did. The president did. And I don't know who needs to hear this, but the federal government and the president are not the same thing. They are not synonymous. Big if true. Big if true. I mean, there's this whole constitution thing and they're separate. In any event, I just want to emphasize, for those of you listening at home, this isn't a project of the federal government. It is the project of a president, a rogue president. And the problem here for this per curiam opinion is that this court seems to have no problem conflating the federal government with the president,

this president specifically, because we all know that Joe Biden did not get the federal government edit from this court. No, he did not. And the court's conflation of the president, or at least this president slash Republican presidents, with the entire federal government reflects a very capacious view of executive power that the Republican justices have embraced in Republican administrations, the unitary executive theory. The unitary executive theory maintains that the president possesses, or at least Republican presidents possess, all executive power and that laws cannot restrict the president's

exercise of what are exclusive executive powers. But as we have said before, there is a creeping trend in the unitary executive theory toward allowing the president to exercise not just executive power, but legislative power and even judicial power as well. So it's now a unitary executive in the sense that this theory unites all government power, all constitutional power, in the president, again, only Republican presidents, as the court make clear by just saying the federal government did this and housing that in the presidency. Republican presidents, of course, also get to exercise Democratic president's executive power, justice as an added boost. All of this is terrifying because it is basically a description of autocracy. Basically.

Basically, trying to dump it down for the boys in the back. That was literally the understatement. That was literally an understatement. Yeah. The reasoning here is A plus 10 out of 10. Obviously, just kidding. The court, again, did not actually make a decision on the merits. And again, I don't think they can because if you were to decide this case on the merits,

there's no world in which the Constitution authorizes the president to raise a of the White House and go around Congress in this way. Just don't see it happening, which is why the court was sort of hemmed in here and had to decide this case on justiciability, in particular standing. So the main thrust of the majority's reasoning here is that the plaintiffs, the National Trust for Historic Preservation in the United States, does not have standing because apparently the destruction of an historic federal site does not injure the National Trust for Historic, preservation in the United States. They have no stake in this whole matter, the National Trust for Historic Preservation in the United States. I'm saying the name over and over again because

for textualists, I think it matters. Like, is this textualism? I think so. It's right there in the name. Yes. Right? They are concerned with the preservation of national sites, historic sites, like the White House, which historically has been the home of our nation's leaders. Names aside, the court decided that a federal agency charged with the historic preservation of national landmarks and historic sites has no stake in a rogue president's decision to raise a wing of the people's house. Think about it. This kind of aesthetic injury, the majority held, is basically kind of the same as when

pro-life doctors argue that the FDA's regulation of Miffra Pristone, offends their interests in seeing beautiful babies born. Just like it. Just the same vague, speculative, aesthetic injury. Yeah. A quick snide aside, you can tell that this opinion is very serious and very careful, given this passage, which appears on page three. Quote, to establish its standing to bring this case, the trust relies on a declaration from a single of its members, Alison K. Hougland. Yes.

A single of its members giveaway. written by Tweedledee or Tweedledum, great English, great legal reasoning, great all around. I mean, yes. Alison Hoagland, in addition to probably knowing how to write a sentence, Alison Hoagland is an architectural historian. So maybe she does have a stake in some of this. I don't know. Hard to say. In any event, though, Hoagland, at the very least, lives in the district of Columbia where said historic site the White House is located. She visits the area around the White House on a monthly basis being an architectural historian. And she alleges that the monstrosity that is now the whole that used to be the East Wing injures her, quote, a set at cultural and

historical interests. To which the Supreme Court of the United States said, quote, we have not recognized standing like this before. Fact check, you also have not recognized kings as presidents before. But you did that. But you did it. But you did it. You also don't have a habit. bit of pulling back rights, but you did that a couple of terms. There's a lot of things you do that seem novel and innovative and surprise you couldn't do it here. In any event, we should note that having a recognized claim or one that is an analog of earlier claims is not necessarily a requirement to establish standing under Article III. Instead, typically, what we require of plaintiffs when we want them to establish standing is that they show, they allege that they have

suffered an injury. In fact, there's no court case that says that the injuries have to be similar to ones that earlier plaintiffs allege. Like, that's not a thing. There can be new injuries, and there likely will be new injuries that we've never heard of when the executive does things that we've never heard of and never seen before, like, when they're just literally pioneering new lawless ways of governing. So just want to bring that in there. Like, maybe if you don't start doing novel new illegal stuff, there won't be novel new illegal injuries. Maybe. Girl can hope. One slightly inconvenient fact for the court's claim that these aesthetic injuries do not suffice for purposes of standing is that one Antonin Scalia, again patron saint of the conservative legal

movement, wrote an opinion that said the, quote, desire to observe an animal species, even for purely aesthetic purposes, can constitute an interest for purpose of standing. Now, We all know Nino Scalia was not quite conservative enough for this court, real rhino, that guy. He's definitely a Republican in name only, an originalist in name only, too. But that court decision, for those of you following along at home and in constitutional law, was Lujan versus Defenders of Wildlife. And it's a pretty seminal standing case and really does sort of touch on this question of just having an interest in seeing certain things in the wild. You know, it's different and it's distinguishable, Leah, because this isn't in the wild. This is not in the jungle. We're not looking for new species.

We're just looking for new ballrooms, and that's okay. The Chief Justice, though, wasn't buying this new novel theory of injury. He wrote in a dissent, quote, with the court's rejection of Hougland's standing today, however, it now is the case that I want to look 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. That is basically me agreeing with John G. Roberts, which almost never happens. Like, I agree with him that the only difference here is that the White House is not in a jungle. Otherwise, the claims are basically the same. And if it worked for Lujan, it should work here as well. The majority opinion. Real crocodile tears. Real crocodile tears.

Crocodile tears. Rino tears. The majority opinion also does some wild stuff. It cites to Trump versus Casa. That was the nationwide injunction case from a few terms ago. and the accompanying claim about irreparable harm. So the court wrote, quote, the district court likely exceeded its Article III authority to enjoin the activities of a coordinate branch of government.

And then they cited to Trump v. Casa. Sit with that for a minute. The real problem of lower courts in joining the president's unlawful destruction of the White House absent congressional approval is the real separation of powers problem. This is basically like how just thinking about race is the real racism, trying to remedy racism. That's the real racism. They're just doing it in different venues now. Yeah, no. The Supreme Court is busy solving the separation of powers, handing the president more and more power, allowing him to do illegal things. Found a problem. They identified a solution. I want to add just two quick points about how fucked up this is. As Melissa, you were noting, this is very similar to what they did in the mail and back.

ballot case with respect to irreparable harm, how can it be that the president is irreparably harmed when he is told he cannot do wildly illegal stuff? Even if you think that the lower courts erred, that is the president's doing wildly illegal stuff, should also obviously factor into the balance of the equities and assessment of what constitutes a reputable harm that might warrant emergency extraordinary relief. Alas, second, this whole standing separation of power thing. This court loves to say that Standing protects the separation of powers, but the reality is they have used standing to disempower Congress, part of their longstanding project, and empower the executive branch to break federal laws. That was the upshot of Lujan v. Defenders of Wildlife and Lujan

versus National Wildlife Federation to say plaintiffs could not enforce laws constraining the executive against the executive branch. They have also, right, essentially nullified congressional statutes that Congress wanted private parties to be able to enforce in TransUnion versus Ramirez as a Fair Credit Reporting Act case and other. So this kind of doctrine is just part of their larger project of incapacitating Congress and empowering the executive branch. I low-key believe that Neil Gorsuch did not put his name on this opinion because where is the fucking major questions, doctrine here? Neil Gorsuch loves to talk about the major questions doctrine loves, loves, loves to talk about it. Where was it here? The whole,

idea behind the major questions doctrine is that the executive cannot take steps that have major, salient, economic consequences without first being authorized to do so by Congress. Wouldn't the destruction of the White House and the creation of a new ballroom with massive amounts of federal monies be implicating the major questions doctrine? Like, wouldn't that have to be specifically and explicitly authorized by Congress? Or am I missing the point? of the major questions doctor. Like, he can have a ballroom, but you can't have student loan relief.

Yes. Chew on that. Yeah. And just to put a cherry on top of all of this, the court nods to the executives' invocation of national security here. So at the same moment, military officials are resigning because Pete Hegg said. They are noting how, quote, the secretary of the army, for example, represents that the height and mass of the

planned above ground ballroom are crucial to shield the ballroom. planned underground military installation from kinetic impacts and that without such height and mass engineers would need to dig impractically deep. This is just so embarrassing that the court is just reciting this and taking it at its word. It's also terrifying because we don't know what else the court will do or allow the executive branch to do merely by saying, they say national security. And the idea that this is national security is nonsensical, right? These guys are also liars, but who cares about that? As we noted, Chief Justice wrote the dissent for the Sanity Caucus together with himself. Once again, before you give the Chief Justice too much credit, wanted to highlight another story that came out the day after the Supreme Court released this ballroom order.

And that's from the New York Times, which reported that a whistleblower is alleging that the federal government is defying court orders on voting by mail. The Times reports, quote, a U.S. Postal Service official has alleged that the agency is moving forward with a secretive rushed effort to, implement President Trump's order exerting federal control over mail voting despite a court order blocking those plans. And what the whistleblower has warned about is something like a catastrophic failure of mail-in ballots in the upcoming midterms. And I just wonder, why does the administration think they don't have to comply with lower court orders? Could it be because the Supreme Court has freed them from lower court orders and injunctions that the administration has not complied with? cannot rule it out. The court has told Trump and Chief Justice Roberts has joined opinions telling Trump that he's a special boy and can do what he wants, including getting emergency extraordinary relief, blocking lower court orders that the administration has plausibly violated, right? They face no consequences for violating those orders from this court.

Well, I'll add another story on top of this. Also on Tuesday morning, the day after the court told the president that he can treat the White House like his personal property, Joe, Kanter, again, the Pulitzer Prize-winning investigative journalist who has joined the Supreme Court beat, published in the New York Times a story about how the justices have seemingly worked out behind closed doors and in secret policies for how and when their papers will be released. Specifically, the reporting suggests that the justices have determined that their papers will be released only when every single justice involved in all of the deliberations is dead. again, because they keep picking these justices younger and younger, we will never see these papers in our lifetimes, right? Like, basically this means that we might not get the information about how they went about deciding Trump versus United States until like, I don't know, 40 years from now. Yep, maybe. I mean, insane. Essentially, just as the justices let Trump treat the White House like his own public property, even though it's not, the justices themselves are saying that their papers and the discussion and deliberations that occur as part of the decision-making

processes, those official proceedings of the government of the United States are their own personal property and the public has no interest in it until they're all dead. Yeah. Serious question just on this ballroom order. If a Democratic president raised the ballroom or announced plans to raise the ballroom in 29, do you think this court would say anyone has standing? Oh, my God. A vegetative Mitch McConnell would be able to bring a case.

Well, he is in Congress. Right. He is in Congress. So here the plaintiffs. Okay. Donors, right, since they love oligarchs. And maybe Trump, since they love kings, they would say they both have standing. But point is, right, like do not.

I mean, the dire, cyclospora would have an interest here. I'm 100% sure. Yeah. Do not expect any sort of consistency to allow democratic precedents to undertake, let's say, expansive assertions of executive authority either. And this seems as good a time as any to remind you that the shadow docket is really the just-the-tip docket. Because they say they're not fucking the country, but they are definitely fucking the country. And this stay in the ballroom case is the entire ballgame for the ballroom.

Like even if they later decide that all of this is lawless, the ballroom will already be built. Well, and Justice Jackson tried to tell us. Like, black women have been trying to tell you all for a long fucking time. So let's just dig into that. So she warned in her dissent from the court's decision granting the stay against the absentee ballot voting executive order. She wrote, quote, allowing the government to obtain interim relief based on isolated threshold concerns about the justiciability of the plaintiff's claims facilitates a patently inequitable catch me if you can't approach to pursuing the president's policy agenda. And she is right. Yes.

Continues to be right. Yep. So all to say, some real fuckery going down here. and that's all we have time for. If you want to hear more about SCOTUS Gone Wrong, you can join me and friend of the pod, Alex Wagner. We will be in conversation about her forthcoming book, The Steel, four right-wing hardliners, one Republican presidency,

and the raid on America's courts. Yes, folks, it's basically a bedtime story about how we got to this fucking place. And that is on September 15th, the Tuesday night from 7 to 8 o'clock at McNally Jackson Books at Brooklyn Studios, one to Cald Avenue in Brooklyn, New York, the Borough of Kings, come by and check us out. And remember, don't forget to listen to the first episode of Hot Scotus Reform September this Thursday.

We are off on Monday for Labor Day, but there will be another Hot Scotus Reform September episode next Thursday as well. We're super excited for Hot Scotus Reform September, and you know who else is? Representative Jim Clyburn, who announced his support for court expansion the day before we announced our Hot Scotus Reform September series. Here he is on the Sunday shows. Former Vice President Kamala Harris shares some of your criticisms clearly. She's called for expanding the Supreme Court from nine justices to 13. Do you support adding four more seats to the Supreme Court, Congressman? Yes, I do.

I think that we are in a position now that calls from some significant actions taken by the Congress. and we ought to expand. In 13, there's a pretty good number. A baker's dozen will be a good number to have on the court. Jim, do we have a great show and series in store for you? Check it out. I mean, when you've turned Jim Clyburn, like, this is an institute, like, folks, they did it. Welcome to the party.

Welcome to the party. It's nice to see you, Representative Climb. We've been warming it up for you. Strict scrutiny is a crooked media production. Our show is produced by Melody Rowell and Michael Goldsmith, Our music is by Eddie Cooper. Our team includes Matt DeGroote, Ben Hethcote, Johanna Case, Kenny Moffitt, Adam Lippert, and Eric Schute. Our production staff is proudly unionized with the Writers Guild of America East.