Sarah and David open with a thank you to the Supreme Court for handing them a meaty summer episode – a 5-4 interim docket ruling allowing White House ballroom construction to continue, in an opinion that somehow mentions crocodiles three times in fourteen pages. They walk through the standing fight in detail, bring in law professor and friend of the pod Will Baude’s analysis of where esthetic standing is headed next, and debate whether courts should be doing more to check executive lawbreaking. From there it’s a two-item detour into Supreme Court transparency – a New York Times article on the justices’ private papers and a Volokh Conspiracy piece flagging AI-written appellate opinions – before closing with circuit court decisions on the 26th Amendment and the Vacancies Reform Act.
Agenda
- [2:23] Goodbye East Wing
- [18:21] Will Baude on esthetic injuries
- [29:17] Should the justices release their papers sooner?
- [45:44] AI in opinions?
- [54:02] South Carolina’s voting law is unconstitutional
- [56:57] Update on Vacancies Reform Act
Episode Takeaways
- Crocodiles and the White House Ballroom? The Court’s 5-4 per curiam opinion let East Wing ballroom construction proceed, holding the National Trust for Historic Preservation’s esthetic-injury theory – a member who says she’d find the finished ballroom distasteful – doesn’t meet Article III’s concrete-and-particularized bar. Chief Justice Roberts, who had issued the stay allowing construction to resume in the first place, dissented, leaning on 1992’s Lujan v. Defenders of Wildlife, which called a desire to observe a crocodile “undeniably a cognizable interest” for standing – hence the crocodile count. Sarah finds the majority’s logic sound but notes it sits uneasily against decades of esthetic-standing wins in environmental cases; David calls it a “precedent versus direction” moment, the same posture the Court took toward Humphrey’s Executor v. United States before finally overturning it.
- Will Baude has four options, and Sarah likes none of them: Sarah runs through Baude’s rundown of where esthetic standing goes from here – kill it outright, cabin it to national parks (doesn’t work, since the White House counts as one), tie it to a statutory cause of action, or let the Court grant and deny it whenever convenient. She rejects all four, which feeds her larger point: Letting “this offends me” support standing would flood the courts with political lawsuits and freeze government action the way California’s environmental-review regime has frozen housing construction. David largely agrees, though he flags what’s difficult about this – by the dissent’s account, which the majority doesn’t dispute, the ballroom project is likely flatly illegal, and under this framework, nobody has standing to stop it.
- Shredders, Signal chats, and the justices’ papers: A New York Times piece by Jodi Kantor traces how unevenly the justices handle their private papers – Justice Byron White once fed his files, including Miranda rights-era records, into a shredder bought for the occasion, while papers from Bush v. Gore may not surface until 2040 under Justice David Souter’s terms. Sarah opposes any law forcing early release, arguing it would just repeat the FOIA pattern in the executive branch of less written records, and no more transparency. David leans toward a uniform rule tied to the last involved justice’s retirement rather than death, while agreeing that in-chambers deliberations deserve something close to permanent confidentiality.
- AI is showing up in circuit opinions: Josh Morrow, writing at The Volokh Conspiracy, ran roughly 2,250 circuit opinions published this year through the AI-detection tool Pangram and found about 50 bearing signs of AI authorship – with the AI share of any single opinion ranging from under 1 percent to more than 50 percent – compared to zero hits in a 2022 control set. Sarah’s concern isn’t accuracy (she stipulates the hypothetical opinions are fully fact-checked) but that, as Morrow notes, “good writing is clear thinking made visible” – outsourcing the writing risks outsourcing the reasoning. David distinguishes it from the routine cut-and-paste of boilerplate standard-of-review language and from the show’s own disclosed use of a ChatGPT-drafted play, arguing the real problem is undisclosed use, not AI use itself.
- Circuit courts side against the government once again: The U.S. Court of Appeals for the 4th Circuit struck down a South Carolina law letting only voters 65 and older cast no-excuse absentee ballots, holding it violates the 26th Amendment’s bar on age-based voting restrictions. And the Vacancies Reform Act losing streak continues: The U.S. Courts of Appeals for the 9th and 2nd Circuits joined the U.S. Court of Appeals for the 3rd Circuit in ruling against the Trump administration’s use of “first assistant” designations to install acting officials, leaving the administration 0-3 at the circuit level even as individual judges split 8-1 against it, with Judge Michael Park’s lone dissent the exception.