Trump’s Ballroom Blitz | Advisory Opinions

Sarah and David are back! Sarah calls from her new home in Houston – measuring cups still missing, first day at a new school in the books. David, fresh off his own 30th-anniversary trip to Yosemite (a “parade of horribles” he’s not ready to discuss on air just yet), walks through a U.S. Court of Appeals for the D.C. Circuit ruling blocking the White House ballroom project, a U.S. Court of Appeals for the 6th Circuit religious-liberty zoning case now headed to the Supreme Court, and those Marquette Law School poll numbers on the Court’s popularity.

They close out with a decidedly trashier segment: what a Vanderpump Rules revenge-porn lawsuit says about the line between the First Amendment and the right to privacy – and how it echoes the Hulk Hogan-Gawker saga.

Agenda

[0:45] We can all laugh about this one day
[3:03] Pierre Charles L’Enfant for some reason?
⁠[5:35] President Trump’s ballroom appeal⁠
[25:43] Grand v. City of University Heights⁠
[53:55] The trashy stuff
[54:07] This is not a populist podcast

Episode Takeaways

The White House ballroom hits a standing wall: In National Trust for Historic Preservation v. National Park Service, the D.C. Circuit sided with challengers seeking to block demolition of the East Wing for a new ballroom. David called the underlying law “very, very difficult” for the administration – Congress reserved control over DC buildings to itself back in 1912 – but flagged the standing theory as a bigger problem long-term, given where the Supreme Court’s standing jurisprudence has been drifting. Sarah’s take: this is the most Massachusetts v. EPA-style standing fight imaginable, and in disputes that are fundamentally about separation of powers between Congress and the president, the answer is often that nobody has standing.
A Judge Sutton opinion heads to the Supreme Court: The justices granted cert in Grand v. City of University Heights, an appeal of a 6th Circuit ruling – authored by AO favorite Judge Jeffrey Sutton – that tossed a religious-liberty zoning challenge as unripe. Daniel Grand, an Orthodox Jew, withdrew his special-use permit application to hold prayer gatherings at his home after the city sent a cease-and-desist letter and, he says, began surveilling his house; Sutton held he never got a final decision to challenge. Sarah predicted the case tracks last term’s crisis-pregnancy-center subpoena ruling, where the Court found a chilling effect injury sufficient for federal court – and noted that a cert grant historically means roughly 70% odds the Court flips the decision below, even one from Sutton, who “doesn’t lose at the Supreme Court,” per Sarah.
The Marquette poll’s partisan disconnect: The Court’s national approval sits at 47%, split sharply along party lines (74% Republican, 35% independent, 22% Democrat). But the more striking numbers were about perception of outcomes: 77% of Democrats say the Court rules for Trump “often” or “fairly often,” while 63% of Republicans now say it rules for Trump “rarely or never” – a jump from 55% just two months earlier. David called the partisan gap in perceived reality “remarkable”; Sarah pushed back that Americans have never really separated the Court from politics, tracing the same complaints back to the Jefferson administration.
Popular rulings, unpopular Court: Despite the Court’s middling overall approval, the public agreed with the outcome in most of its marquee rulings this term. Only two rulings polled underwater: allowing removal of independent-agency heads (49/51) and letting political parties coordinate more freely with campaigns (47/53, the least popular of the bunch).
Sarah’s case against issue polling: Unlike election polling, issue polls have no report card – nobody checks the results against a real-world outcome – and respondents often answer a different question than the one asked. Approval of the Supreme Court frequently functions as a referendum on whoever’s in the White House (Democratic approval of the Court rose the moment Biden took office, same nine justices and all), while approval of specific rulings like the campaign-finance case often just measures feelings about money in politics generally, not the legal reasoning.
Revenge porn meets the First Amendment: A California appeals court let Rachel Leviss’s suit against Ariana Madix proceed over videos Madix recorded and sent after discovering Leviss’s affair with Tom Sandoval (of Vanderpump Rules fame) – echoing the Hulk Hogan-Gawker fight and the 1990s Bret Michaels-Pamela Anderson Lee tape case. Sarah pressed David on why the First Amendment doesn’t simply win: The fact of an affair is fair game to discuss, but courts have long treated the visual and physical details of a sexual encounter as protected by a common-law zone of privacy that public figures don’t fully forfeit, however famous they are.

Show Notes

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