Supreme Court Majority Traps Themselves with Despicable Ballroom Ruling!!!

Welcome to the Court of History. I'm Sidney Blumenthal. I am here with my co-host, Sean Wilentz. The Court is now in session. Please subscribe to Legal AF and get this podcast wherever you get podcasts. Sean, Professor Wilentz, I am a proud graduate of Chicago Public Schools. As well you should be. Proud. I am. And many years ago, when I was in the eighth grade, part of graduation from elementary school was that we had to pass a civics test, if you can believe it. I remember. I had to pass the same test. Go ahead. And we had to know the three branches of government and what they did, and we had to know the president's cabinet and what they were. My father would drill me in it, and those were the basics that we had to learn to graduate and get that valuable certificate to go to high school. Yeah, well, I mean, yeah. Civics is a lost art in American education, unfortunately. But go ahead. So my question, as we'll discuss in this episode, is to borrow, to paraphrase President George W. Bush, is our Supreme Court learning? Yeah, yeah. Well, develop that a little bit because, you know. Well, I'm not going to do it. I'm going to leave it to somebody else who knows a lot more about it than I do, being a mere Chicago public school grad. Yes, yes, yes. But basically, you're asking if the Supreme Court, especially Chief Justice Roberts, is up to snuff with eighth grade civics. This is what you're saying. Well, all of them. So let's bring in somebody who may cast some light on this question, and that is Leah Lippman. She is professor of law and associate dean at the University of Michigan Law School. She is the co-host of Strict Scrutiny, a podcast about the Supreme Court. And she is the author of Lawless, how the Supreme Court runs on conservative grievance, fringe theories and bad vibes. Welcome again to the Court of History, Leah. Thanks for having me back. So you have just written a piece in The Atlantic entitled Can you explain how they arrived at their decision on Trump's ballroom allowing a stay and essentially for it to be constructed without correct permission and how they ruled and who ruled? Yeah. So the basic conceit of the piece is that the Supreme Court is getting the separation of powers totally wrong. So in this ballroom case, what the court did is lower courts had blocked the president's continued demolition of the White House and construction of a ballroom on the ground that it was illegal. But in order to maintain a suit in federal court, a plaintiff has to show that they have standing to raise their argument. They have to show that they are being injured by what they are challenging, so on and so forth. And so what the Supreme Court, a majority did in the ballroom case is without purporting to say whether the president's actions are legal, they said the plaintiff who brought this case, the National Historic Trust for Preservation of the United States and its member were not injured by the construction of the ballroom. And so that allowed them to say the lower court got it wrong because they allowed a party to sue when that party wasn't injured without the court having to say and what the is doing is in fact legal. Well, they had a per curiam decision. That means that there was no one person who wrote the opinion. And in that opinion, how did they define who was responsible for building the ballroom? So the opening line of the per curiam opinion, which doesn't identify an author, but we know who signed it. It's the five Republican appointees minus the chief justice. The very first sentence of this per curiam opinion gets off on the wrong foot by saying the federal government began to build this ballroom. But it wasn't the federal government. It was the president, the executive branch, and the plaintiffs who were arguing that this construction wasn't legal argued that the president was doing this in violation of federal laws that Congress had passed. So this is not something that all of the federal government is behind. The case is about whether the president is acting in contravention, in violation of laws passed by the part of the federal government that has the authority to spend money and allow for the alteration of federal property, which the White House is. That sounds like such an arbitrary, obvious alteration of the facts, right? I mean, this isn't even a joke. They're not even really hiding this terribly well. It seems arrogant to me in any way. No, I mean, I think that that's completely right. I think it is indicative of a few different things. One is just the sloppiness and the hackishness that this court is totally comfortable engaging in because now that they have a supermajority of right-wing appointees, they don't really have to work to get that fifth vote. They have some flexibility to lose one of the justices, and so they don't even feel like they have to try. And I think they have also learned that they can get away with an awful lot. I mean, from the presidential immunity decision to ensuring there wasn't going to be a trial on election interference charges before the election to overruling Roe, you name it, they have done all of these very unpopular, pretty disastrous things, and yet no one has made any meaningful reforms or checks on the Supreme Court. And so they feel emboldened, and that leads them to not even try. So that's one aspect of it, the sloppiness and laziness. But another is they have this remarkably expansive, capacious view of executive power, where to them, the president is the one true repository of democratic authority in the United States, and they view the president as somehow premier or more important than the rest of the federal government, including the legislature. And just quickly, though, in making this argument, the Solicitor General Sauer has argued that Donald Trump is not the resident of the White House, he is the president, which is somehow bigger than the residency of the White House. We went through this in an earlier episode of The Court of History. I mean, this too is a kind of identification, not just of the office being supreme, but of the man being the office, which is extraordinary. Yes, it is. This is Donald Trump who is partially collecting these funds through private donations, and the private donations are from entities that are also contributing to his presidential library, which is private. This is not something that even plausibly benefits the entire executive branch. I mean, Donald Trump has basically said, I want to throw some really amazing parties here, and this ballroom is very personally important to him as an individual. So all of this is just adding even more problematic dimensions to what the Supreme Court is doing as far as they are authorizing this one man who holds one office within the rest of the federal government to kind of run roughshod over a bunch of legal constraints on his office's authority. The Supreme Court seems to, in this per curiam decision, it's not really a decision. Whatever it is, a ruling just obliterates, once again, whole parts of the Constitution in order to reach its result, and not least Article I and Article III themselves. So it's a self-obliteration, and it would be generous to say that this was an affirmation of their idea of the unitary executive, since it's so egregiously stupid to say the president is the federal government. That's pretty bald. It is, and yet, time and time again, the Supreme Court has been beating this drum about how the unitary executive theory is necessary and good for democracy. One of many things that is so problematic about this theory is that they have used the unitary executive theory to allow the president to act in violation of laws that are passed by Congress. Congress is a democratically elected branch. They are democratically accountable to the people. Why is the president more democratic, more of a legitimate repository of democratic authority than Congress and the laws it passes? The Supreme Court has never deigned to explain why that is, and that kind of feature of the unitary executive theory is part of why it seems to me that they are just increasingly viewing the president as the sole legitimate arm or authority of the federal government itself. Well, the argument I've sometimes heard, though, is that the president and the vice president is the only officer of the government who was elected by the entire electorate. We all know that it's the electoral college and so forth. But that is the argument that's often said, that the congressmen represent a small district, but the president and the vice president are truly national office holders in a way that others aren't. What do you say to that? Yeah, well, individual congressional representatives can't pass laws, right? They need a majority of both bodies. And so the laws that we're talking about, that the court is allowing the president to violate, don't represent the single limbs of a single senator from Wyoming or a single representative from some small district in the country. Instead, they represent the democratic authority of a branch that is elected and the majorities in both bodies and the super majorities in both bodies when we're talking about non-budgetary laws. Yeah, okay. So there's another curious part of this ruling, which is that they say that they ruled in Trump's favor because of the likelihood of success of this case, which seems to me to be the abolition of logic in order to reach the result that they desire. So it could be successful if the five justices who rule in favor of saying it's successful believe it's successful. So this is completely tautological. What is this? How could this be successful when the chief justice says it is unlikely unlawful? It is likely unlawful. Likely unlawful, right. Yeah. So I think what that standard is getting at, the likelihood of success on the merits, is whether the party who is asking for relief from some lower court order, here we're talking about the president, is likely to succeed in convincing a appellate court that the lower court got it wrong. So here, the likelihood of success on the merits, the majority in this per curiam opinion focused on the issue of standing. Was the lower court right to say that the plaintiff who brought this suit was injured and was facing continued injury from the construction of the ballroom? And five justices said they were wrong. Now, that's wrong on the facts. That's wrong on the law, because the Supreme Court in a prior decision written by Antonin Scalia had said, an aesthetic injury, merely being deprived of the enjoyment of looking at an animal, a crocodile, that would suffice for purposes of standing, right? It would mean you're injured. You've been deprived of something you enjoy doing. Here, the lead plaintiff is saying, I do not like looking at this monstrosity, right? Like that is an aesthetic injury to me. And so what the chief justice pointed out is the per curiam majority opinion is essentially ignoring this opinion by Justice Scalia, which said aesthetic injuries do count. It's creating a universe where being deprived of the ability to see a crocodile counts as an injury, but having to be forced to look at a ballroom in the White House and being deprived of the opportunity to see the White House as it was, like isn't an injury, that doesn't make any sense. But then there's this kind of bigger picture question of, well, what does it mean to have a likelihood of success? And in addition to showing that a party has a likelihood of success, they are supposed to have to show that without this emergency intervention, without the appellate court issuing a stay, they will be irreparably harmed. And so even if you assume for one second that the lower court was wrong to say the plaintiff has standing and that the lower court, right, order was wrong, president is likely to succeed on saying, right, this plaintiff doesn't have standing. How could the president be irreparably harmed if the president doesn't have the legal authority to construct this ballroom in the first place? Because the court is just telling him you can't do that, which he shouldn't be able to do slash doesn't have the legal authority to do. So the idea that the president is being harmed and irreparably so because he is being told to do something or not to do something that is illegal, like that doesn't make any sense. And yet the court has so narrowly defined the legal standard for what constitutes irreparable harm and irreparable injury that it has twisted it to basically mean, well, whenever we think the lower court did something wrong against this president, we'll grant emergency relief. And that just cannot be the end-all, be-all, the sum total of irreparable harm, injury, separation of powers analysis. Yeah. And it just shows, I mean, basically they've come to the conclusion they're finding any way to get there. And this is typical of a court in so many ways, but this is an especially egregious example of it, I think. I mean, they're not really narrowing any principle that is getting to where they have to be. They would throw it out. They would change their minds tomorrow, it would seem to me, if the decision was meant to go the other way. Yeah. It is extremely frustrating, especially because this is not the first time that the court has paused a lower court order that blocked the president from doing something that is pretty clearly illegal based on this idea that, well, we're not sure that the plaintiff actually was being injured by this. Again, even had they considered the whole case, they should have considered that what the president was doing was wildly unlawful. Yeah. Well, now Donald Trump is attempting to eliminate mail-in ballots. Yeah. And he's going through the lower courts and has made an emergency appeal to the Supreme Court. On September 4th, the U.S. District Judge of Massachusetts blocked his plan to use the U.S. Postal Service to screen mail-in voters. They have a rule, some kind of crazy system where if they claim that they have found one defective ballot, they can throw out the entire batch, 10,000 votes. And essentially disenfranchise whoever they want in whatever district they want. So we don't know when the Supreme Court will rule on this and what they might say. The law seems pretty clear that the president has no standing whatsoever involving this issue since the Constitution very explicitly says that this is up to the states to conduct elections. So will they rule as they did in their ruling on the ballroom that the president has no standing? What will they do? Well, so the way standing works is it's got to be the plaintiff who files the case. Like they are the entity, right, who has to show standing. But this is another example where I think the court did the irreparable injury, separation of powers, harm analysis all wrong because here, too, what the court said is, look, the plaintiffs who brought these cases, they are not yet harmed by this executive order that basically threatens to disqualify, right, tens of thousands of absentee ballots. And the court suggested the plaintiffs had brought this case too soon. That was nonsensical, right? It just did not make any sense of the facts, right? Early voting has already started in some states, so it cannot possibly have been the case that the case was brought too soon. States have already printed millions of dollars in envelopes for absentee ballots, ballot return envelopes. So here, too, right, the court is just wrong to say that no one was going to be injured by this executive order. But what the court has done is they have unleashed this chaos where people are frantically trying to figure out, are the rules of this election going to radically change all of a sudden, you know, because the president is doing this unlawful executive order and we don't know what the Supreme Court will do given how outlandish, right, they have been in ruling for the president in the past. Now, I think that the lower court in this case, you know, again, as we're recording, this is a quickly developing situation. So who knows what might have happened, you know, by the time people are watching this. But the lower court blocked the Postal Service's rule that threatened to, you know, disqualify all of these ballots, you know, unless, you know, states kind of used the Postal Service's or the federal government's, like, requested forms. And I think the concern is, well, OK, in this case now, it is very clear there is a rule or regulation that is injuring the states. So the court can't wheedle out of this by saying, right, the states aren't injured, the suit is brought too soon. But could they wheedle out of this on some other ground and say, well, federal courts aren't supposed to intervene, right? In litigation concerning the rules regarding an election, too close to an election. And so there's this real danger that the court is going to be creating this Goldilocks situation where they said, well, the previous case, that was too early. This case is too late. And so you kind of miss the magic window in which you can challenge, right, rules regarding an election that might be changing close to an election. I think that that is the concern. You know, I think if the court actually reached the issue of, like, is this regulation lawful? It has to say it is illegal. I say it has to say that, right? Obviously, they will and can do and have done, like, whatever the F they want to. But as you were saying, the president has zero authority under the Constitution to regulate elections. Only Congress can alter rules that states have made. And Congress in no way authorized the president to displace states' rules regarding absentee ballots. Yes. But on all the redistricting stuff, though, they've shown no compunction about going, changing the rules as you're approaching an election. I mean, they seem to be thriving on chaos, causing chaos precisely for that reason. So the court has — the principle we're talking about is called Purcell. And the Supreme Court invented it, right? And they said there's this principle that means federal courts can't alter the rules too close to an election. But the principle doesn't apply to entities other than the federal courts. So Purcell doesn't bar the federal executive or states from changing the rules, like, regarding an election. Now, that being said, the Supreme Court has still inconsistently applied the Purcell principle, right? Like, it released Louisiana v. Calais, the Voting Rights Act decision, quickly issued the mandate, even after Louisiana had issued ballots and people had — I think 40,000-some people had already voted in Louisiana's elections. So the Supreme Court does not consistently follow that principle. Instead, it oftentimes says, oh, this challenge came too late when the challenge tries to protect voting rights or protect access to the ballot box. And yet it never seems to come too late when it is a restrictive Republican benefiting rule. And, you know, again, that's partially the concern here. Yeah. So they seem to be completely results-oriented. And I wonder what you think about Chief Justice Roberts in his siding with the three liberal justices on the Ballroom case. He has expressed sentiment on numerous occasions, worried about the legitimacy of the court. And what the conservative majority seems hell-bent on doing is ripping it apart. Yeah. I mean, I feel like too little, too late, right? A little kind of rich coming from him. You know, this is, after all, the guy who, according to The New York Times, is really behind the creation of the modern shadow docket. He is the one that pushed for the Supreme Court to issue these emergency shadow docket rules because he didn't think, right, the Supreme Court's decision in some case involving an EPA regulation had ended up mattering because the regulation actually went into effect. So, right, if you don't like the court issuing these nonsensical rulings on the shadow docket that emboldened the executive, well, you know, pot calling kettle, right? Like you kind of made this happen. Also, he's joined a plethora of rulings that this Supreme Court has issued on the shadow docket that have facilitated unlawful, expansive, novel exercises of presidential power, including, right, decisions invoking the unitary executive theory that allowed the president to fire officials, you know, in violation of federal law that at the time were perfectly constitutional. So, you know, he was right here, but so too are stop clocks occasionally, right? And he just bears a lot of institutional responsibility for the current court's willingness to use the shadow docket to selectively favor Donald Trump and expand executive power, right, at the expense of the rule of law. With the expansion of federal power, which is supposed to be about a principle, is actually about Trump in the end anyway. But I just wonder very quickly about an embryonic case. We're going to go to one that hasn't advanced very far. And that's the arc to Trump, the Arlington arc to Trump, which is now being contested by veterans groups, actually, who object to the fact that Arlington Cemetery will be basically, you know, blocked off and so forth. How do we see it? I know it's too early and I don't want to pin you down too much, but nevertheless, how do we see that developing? Is that going to go along the same lines as the ballroom case? Is the ballroom case a kind of what I'm asking, I suppose, is this a precursor or a predictive case vis-a-vis this other one, which is in many ways, in some ways, even more egregious, I think, than the ballroom case. Yeah. So a few things. One is I do think that the ballroom case was a precursor in the sense that it told the president, like, just go ahead and destroy stuff and make the federal courts try to stop you. This actually came up in the oral argument in the ballroom case, where one of the judges on the D.C. Circuit asked the federal government's lawyer, like, is your position that once you start building, there's basically nothing the federal courts can do? And they basically said yes. And so I think part of what the federal government lawyer right here, what DOJ, what Trump is trying to do is say, right, I'm just going to do it, and then it's going to be a lot harder for you to stop me because what are you going to do? Make me, like, re-demolish the place and try to reconstruct what was there before I blew it up, right? That's just much more administratively difficult for the federal courts to remediate. So I do think that that is, you know, a through line across these cases. I am also concerned, right, that the Supreme Court would say these veterans, right, who don't want to be buried under this, you know, ostentatious, like, un-American, like, personal symbol for Donald Trump, they don't want to be buried under that. They want to be buried at the Arlington National Cemetery as it existed before. Like, will the courts say, well, that just amounts to disagreement with this construction project? Like, they wrote off the injuries to the National Historic Trust. It's difficult to say because the law used to be clear. If you actually had an aesthetic injury, if you experienced an aesthetic injury from witnessing something that you knew you were going to witness, that you knew, right, you were going to be a part of, then that qualified as an injury. But in the Ballroom case, the court opened the door and said, well, except sometimes it's not when we're willing to just recharacterize your injury as disagreement. In this case, it's as if anybody who's living has no standing. And you have to be somebody who was buried at Arlington who would have standing. But they can't file the case. Perhaps their estate can. But, you know, this just kind of gets at, like, the ridiculousness. I have an estate of somebody who's buried there, my father-in-law, who was a very brave member of the Army Air Corps in World War II. But they would not grant standing to anybody. Now, I don't think they would, but they should. They should grant standing to people who go to Arlington National Cemetery to visit the graves of people who are honored there. They should grant standing to the veterans who don't want to be buried there. But you cannot count on these guys to do the right thing. They should grant standing to every American citizen. I mean, this entire thing is a monument to the nation. It's not a monument to the people who were buried there. It's partly that, to be sure. But the whole thing, and by the way, it affects not just the view of Arlington, but it affects the view of the Lincoln Memorial. There was a very, very good reason why it was put where it was put. This is something where the entire nation, any American citizen should have standing, I think, to object to this obliteration of something that is quite, what should we say, as sacred as you can get in a secular society. Right, like these monuments were created for Americans to visit, right? They were created with the Congress authorizing funds. We know how Arlington was created by the Quartermaster General Montgomery Meggs of the United States Army at the house of Robert E. Lee and the graves, first graves put as close to the house as possible as a statement about his treason. And we know that the Lincoln Memorial was built in a direct line to that as a measure of union. And this obliterates that. And so in a sense, if it is anything, Trump's arch of triumph is a monument to his disunion. Yeah, agreed. Well, on that note, we want to thank you for these lessons in jurisprudence. Thank you, Leah Lippman, for appearing on the Court of History. This session is adjourned. 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