When "I Want to Look at the White House" Isn't Enough: The Ballroom Standing Ruling

Alison Hoagland lives on Capitol Hill, about two miles from the White House. She moved to D.C. in 1977. She's an architectural historian, a professor emerita at Michigan Tech, and has written six books on American architecture. Her most recent one was on the Washington row house. Before that, she spent fifteen years as a senior historian at the Historic American Buildings Survey — the National Park Service program that documents significant buildings, including the White House itself. She's been a trustee of the National Trust for Historic Preservation for over forty years, and she visits the neighborhood around the White House about once a month. Her sworn declaration describes walking through Lafayette Square to look at the historic buildings and at the way L'Enfant's plan put the president's house on an axis with 16th Street. On August 31, 2025, in an unsigned 5-4 order, the Supreme Court said her injury from the East Wing ballroom probably doesn't count.

This is the ballroom case Gwen teased at the end of the standing episode. If the earlier episode explained the doctrine in general, this one applies it to a live decision that treats the doctrine differently than everything that came before it. The National Trust sued the National Park Service to stop the construction because a 1912 statute says "a building or structure shall not be erected in any reservation, park, or public grounds of the federal government in the District of Columbia without express authority of Congress." Two lower courts agreed the Trust was likely right on the merits — Congress hadn't given express authority. The government's response was that the Trust couldn't sue at all. The Supreme Court agreed with the government on that second question and never reached the first. The stay went into effect the same day. Construction has never stopped.

The majority opinion is short. Its core is that "mere offense, disagreement, or distaste does not qualify as a concrete and particularized injury under Article III." It reads the Trust's case as offense — a scholar objects to what a building looks like now — and cites Valley Forge and the 2024 FDA v. Alliance for Hippocratic Medicine decision as the controlling frame. If disagreement with a government project is enough to sue, the majority says, virtually any citizen could challenge virtually any government action. The Trust had pointed to the environmental cases where aesthetic injury has always been enough — Sierra Club v. Morton, Friends of the Earth v. Laidlaw, Summers v. Earth Island, and Lujan itself, which said "the desire to observe an animal species, even for purely aesthetic purposes, is a cognizable interest." The majority distinguishes those on the ground that those plaintiffs lost a use, not just a view. Laidlaw residents had stopped fishing, camping, swimming, and picnicking in a river because a plant was polluting it. Hoagland can still walk over to look at the White House. What's changed is whether she likes what she sees.

Chief Justice Roberts wrote the dissent, joined by the three liberal justices. He starts with the merits the majority wouldn't touch — Congress has plenary authority over federal property in the District, Section 8106 requires express authority, and Congress hadn't given it. Then he builds Hoagland as the standing test Sierra Club v. Morton pointed toward: someone who not only uses the site but has the professional and personal history that makes her use unmistakably concrete. The comparison to Joyce Kelly is his sharpest line. In Lujan, Kelly's affidavit said she'd been to Egypt and hoped to go back someday to see the crocodile. That "someday" lost her the case. Hoagland has been going once a month for decades and will keep going. Both women meet what Morton said to bring. And yet, Roberts writes, "'I want to look at the 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 — no matter how distinctive the particular viewer's interest in looking at it may be."

The comparison to the other big standing case this term makes the pattern harder to reconcile. Seven months earlier, the same Court decided Bost v. Illinois State Board of Elections 7-2. Congressman Mike Bost sued Illinois over its rule counting mail ballots that arrive up to two weeks after Election Day. The Seventh Circuit had said he lacked standing — his monitoring costs were voluntary spending to avoid a hypothetical harm, and he'd won his last election with 75% of the vote. The Supreme Court reversed. Chief Justice Roberts, writing for the majority, said candidates have standing to challenge the rules governing how votes are counted in their elections, whether or not those rules hurt their chances. He quoted Scalia's 1983 law review article, "What's It to You?", and offered the analogy of a 100-meter dash unexpectedly extended to 105 meters — each runner would suffer even if some expected to win anyway. Justice Jackson's dissent, joined by Sotomayor, pointed out that in an election the voters are also participants, not just spectators. Every voter has an interest in a fair count. That interest common to the public is exactly what the Court has always called a generalized grievance. Jackson called the majority's rule "a harm-free, status-based standing rule for one kind of plaintiff." Barrett concurred only in the judgment, joined by Kagan, refusing to create a bespoke rule for candidates and finding standing on the narrower ground of pocketbook injury from paying poll watchers.

Read side by side, Bost and the ballroom order both ask the same question. Is this plaintiff's interest different in kind from everyone else's? The Bost majority found the difference in who Bost is — a candidate. The ballroom dissent found the difference in what Hoagland does — the monthly visits, the professional life built around historic buildings. The ballroom majority rejected use as the marker of difference. The Bost dissent rejected status as the marker of difference. The doctrine doesn't say which one matters. Each side had a principled way to reconcile its two votes, but the doctrine is loose enough that the results depend on which distinction the justices apply. That's the point the standing episode made in the abstract. This episode is what it looks like when the same test produces opposite results in the same term.

The equities analysis in the ballroom order is where the two halves of the majority's opinion don't quite line up. The Court offered standing as one ground and the balance of equities as an alternative ground — the government's security declarations from the Director of National Intelligence, the heads of the CIA, FBI, Secret Service, the Army Secretary saying the height and mass of the above-ground structure were critical to shield underground military installations from kinetic impacts, all set against a harm the majority described as "one member's offense." The trouble is that if her offense isn't an injury, there's nothing to weigh on the other side of the scale. But if it is an injury weighable against the government's security interest — even if it loses that weighing — then it was an injury for standing purposes too. The two rationales describe her harm differently. The dissent's response on security was that the government's own filings said the below-ground security work was independent of the above-ground construction, and that the injunction had already allowed the security facilities plus any above-ground work needed to protect them. It barred only the ballroom. On that account, the equities argument was about the ballroom, not the bunker. Neither position got tested — this was an emergency application, decided on paper.

Where the case sits now: the stay remains in place. The government's petition for certiorari is due in early November. The framework is expected to be substantially finished by November as well. The whole building is expected to be done by August 2028. If the Court takes the case, the standing question comes back on full briefing. If it doesn't, the emergency-docket prediction is the last word. Two lower courts said the law probably wasn't followed. The door may close before any court gets to say so for good.

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Full Rough Transcript

Opening

Gwen: Welcome to Administrative Remedies, because you can't fix what you don't understand. Brought to you in part by the University of Tulsa College of Law's Mabee Legal Information Center. I'm Gwendolyn Savitz, an associate professor here at TU.

Marc: And I'm Marc Roark, a professor at the College of Law. We'll be breaking down complex doctrines with real-life analogies and examples, to demystify the world of administrative law for everyone trying to understand how government actually works.

Gwen: Agencies are the main way the federal government gets things done. It's not through Congress, for reasons we'll be addressing over the course of the series.

So, Marc. Alison Hoagland lives on Capitol Hill. She's about two miles from the White House. She first moved to D.C. in 1977. By her own account, she's in the neighborhood around the White House about once a month — for meetings, for exhibits, for doctor's appointments. When she's there, she walks through Lafayette Square to look at the historic buildings, and at the way L'Enfant's plan put the president's house on an axis with 16th Street. And she also sees it from the south side, driving along Constitution Avenue or walking in the area.

Marc: That's a lot of detail about a walk.

Gwen: Yes, it is. It's from a sworn declaration, and the detail there is the point. She's also an architectural historian and a professor emerita at Michigan Tech. She's written six books on American architecture. The most recent one was on the Washington row house. Before that, she spent fifteen years as a senior historian at the Historic American Buildings Survey, a program that documents significant buildings, including the White House itself.

Marc: Which is part of the National Park Service. That's one of the defendants.

Gwen: Yes. And she's also been a member of the National Trust for Historic Preservation for more than forty years, and she's now one of its trustees. When the Trust board meets in Washington, it meets at Decatur House, on the corner of Lafayette Square. And she said she planned to be at those meetings this year.

Marc: Okay, so what's her injury?

Gwen: The ballroom. Her argument is that the White House makes its statement by standing alone, and a structure that exceeds it takes that away. Here's how she put it in the affidavit.

Marc: To have an adjacent structure overshadowing the White House, exceeding it in height and massing, would diminish the primacy of the White House, which makes its architectural statement through its singularity on the landscape. No longer would the eye be drawn to the jewel of the building in the center, declaring to viewers that our president lives in a house.

And on August 31st, the Supreme Court said that probably there isn't an injury here.

Gwen: Right. So this is five to four, in an unsigned order. The Trust relied on her declaration and nobody else's. If her injury doesn't count, the Trust has no standing, and no federal court gets to the question the two lower courts had already weighed in on: whether the president needed Congress's permission to build — to redo the East Wing.

Marc: Okay, and in our standing episode we spent a good while on Joyce Kelly, who wanted to go back to Egypt to see a Nile crocodile. And Kelly had no trip planned, but Hoagland has been going about once a month for years, and she swore she'd keep going.

Gwen: That's the comparison the Chief Justice makes in his dissent. And he also talks about the crocodile, but we'll get there.

Marc: Okay, so what did the majority see?

Gwen: Somebody who just doesn't like how a building looks.

Segment 1 — A 1912 statute and an emergency application

Gwen: And the timeline matters here. The Court said the demolition of the East Wing started in October 2025, and it was finished by December. The Trust sued on December 12th. In March, it asked for a preliminary injunction against the new construction — not the demolition, which was already done. On March 31st, the district judge granted it, and stayed his own order for fourteen days so the government could appeal.

Marc: Okay, so construction came to a stop.

Gwen: It never stopped. The D.C. Circuit extended the stay and sent the case back. The district judge clarified the injunction — that below-ground security work could continue, above-ground ballroom construction could not — and stayed it again. On August 7th, the D.C. Circuit affirmed, two to one. So the government goes to the Supreme Court, and on August 31st, the Court granted a full stay.

Marc: So two wins in a row in the lower courts, and not one day with the injunction in effect.

Gwen: Yes. And the entire time, the building was being built.

Marc: Look at the caption, though. National Park Service versus National Trust. The president ordered this. Why does the litigation run through agencies?

Gwen: This is because the APA reaches agencies and the president isn't one. We've run into that problem. So in this case, that turns into one of the big fights. The Trust first sued the Park Service under the APA. The government answered that the Park Service wasn't running the project — the Executive Office of the President and the Office of the Executive Residence were — and neither one is an agency under the APA. So it argued there was no agency action to enjoin.

Marc: And the court accepted that?

Gwen: At first. In February, the district judge denied a preliminary injunction on essentially that ground. Then the Trust amended its complaint and added ultra vires claims: the officials directing the project were acting without any authority Congress had given them, which the court can review in equity even without the APA. Then the government changed course and argued that the Park Service had authority to build the ballroom under its own organic statute.

Marc: The same Park Service it had just said had no role.

Gwen: Yes. And the district judge noted that this argument came as a surprise. By the time the case reached the D.C. Circuit, they had two parallel tracks. There was an APA claim against the Park Service, and an ultra vires claim against the president's reliance on his own statutory authority.

Marc: This case kind of encapsulates a lot of what we've been talking about. The review machinery is built around agencies, and the question of who is actually making the decision can decide which machinery applies.

Gwen: Yes. Both of those tracks, though, hit the same sentence that Congress wrote in 1912.

Marc: Congress said a building or structure shall not be erected in any reservation, park, or public grounds of the federal government in the District of Columbia without express authority of Congress.

Express authority of Congress. That seems pretty straightforward on its face.

Gwen: The White House grounds are federal public grounds. Nobody's seriously disputing that. The fight's over whether Congress had given express authority. The government pointed to two provisions. One authorizes appropriations for the care, maintenance, repair, alteration, and improvement of the Executive Residence — and this fiscal year, Congress appropriated about $2.5 million for maintenance and safety work. The other directs the Park Service to manage parkland in a way that conserves historic objects. The Chief Justice's view is that neither comes close. A couple million dollars for upkeep isn't express authority to spend hundreds of millions in private donations to tear down one wing of the White House and build a 90,000-square-foot ballroom in its place.

Marc: And the majority disagreed.

Gwen: The majority didn't say a word about it. So the majority said:

Marc: Today we do not pass upon the legality of the government's East Wing project. We conclude only that, based on the submissions before us, the government is likely to prevail in showing that the Trust lacks Article III standing to challenge the project in federal court, and that the remaining stay factors favor relief.

So the government wins the stay by being likely to win on standing, not on the statute.

Gwen: Right. The government had to convince the Court that it was reasonably likely to take the case and fairly likely to reverse, that the government faced irreparable harm, and that the equities favored a stay. The likely reversal can rest on any issue that disposes of the case. And standing does that. If the Trust can't sue, the statute never gets construed.

Marc: And so everyone keeps saying this is a prediction and not a holding. But the government says the framework should be substantially finished by November, and the whole building by August 2028.

Gwen: And at this point, the government's own filings say that the project is past the point of return. So in practical terms, you're right. That prediction does the work of a decision. And that's not unusual on the emergency docket, but it's rarely this visible. The Trust's public statement stressed that this wasn't a final decision on the merits, and asked the Court to move quickly on the government's certiorari petition.

Segment 2 — The majority: offense is not injury

Gwen: The actual majority opinion for this was short. Its core is these two sentences. The majority said:

Marc: This Court has not found standing in circumstances like these before. To the contrary, we have repeatedly held that mere offense, disagreement, or distaste does not qualify as a concrete and particularized injury under Article III.

And the cases behind that are the ones every con law student reads. Valley Forge is the big one. Americans United challenged the government's transfer of surplus property to a Bible college, and the Court said being offended by an Establishment Clause violation you learned about isn't an injury.

Gwen: A plaintiff needs something other than the psychological consequence of watching conduct you disagree with. It pairs that with the 2024 case, FDA v. Alliance for Hippocratic Medicine, where doctors who opposed the FDA's loosening of rules on the abortion pill lacked standing. The Court said then that distress at or disagreement with the activities of others isn't a basis for a federal lawsuit. And it leaned on that line here more than anything else.

Marc: OK, so what's the argument that an architectural objection is just disagreement? Hoagland isn't objecting to a policy. She's objecting to a building she walks past.

Gwen: The majority's answer is about limits. If offense at a government project is enough, nearly any government project is going to offend someone. The order calls the Trust's view unprecedented and limitless, and says it would mean virtually every citizen could challenge virtually every government action they don't like.

Marc: OK, but that's a floodgates argument. And here it seems to have some real force. But I'm not sure I agree with it. We're not just talking about changing the curtains out. We're talking about the demolition of an entire building. Millions of people look at that White House every year. Some meaningful fraction of them would say this new wing ruins it.

Gwen: Yes. So that's why the majority spends a lot of its space on cases that point the other way. The Trust relied on the environmental cases, where aesthetic injury plainly is good enough. The majority distinguished them on the ground that those plaintiffs had lost a use, not just a view. In Laidlaw, residents had stopped fishing, camping, swimming, and picnicking in a river because a plant was polluting it. In Summers v. Earth Island, the government had conceded that one member's recreational interest in a national forest was enough. And in Lujan — Lujan says the desire to observe an animal species, even for purely aesthetic purposes, is a cognizable interest.

Marc: That's the sentence the Trust must have built its brief around.

Gwen: Yes. And the majority's response is the next sentence of Lujan. A cognizable interest is necessary, but not sufficient. That standing requires more than an injury to a cognizable interest. The injury still has to be concrete and particularized, and in the majority's view, distaste isn't either one.

Marc: Okay, but what about her credentials? I mean, Hoagland isn't just a tourist. She's a preservationist. She's a scholar with a documented lifelong interest in exactly this building.

Gwen: So the majority says that the rules shouldn't have any carve-out for experts. Standing isn't measured by how intensely the litigant cares — that's Valley Forge again — or by some special interest in the subject, which is Lujan quoting Sierra Club v. Morton.

Marc: OK, but Morton is a case where the Sierra Club lost because no member said they used Mineral King at all. Hoagland says she uses the place at least once a month.

Gwen: Yes, that is the pressure point with the majority, and the dissent pushes on it hard. So the majority's implied answer is that what she does there — looking — hasn't been taken away from her. She can still walk over and look. What's changed is whether she likes what she sees.

Segment 3 — The dissent: what's it to you?

Gwen: Now let's talk about the dissent. The Chief Justice wrote for four people, himself and the liberals. He opened on the merits, which the majority wouldn't touch. Congress has plenary authority over federal property in the District. Section 8106 requires express authority, and Congress hadn't given it. So in his view, the construction is likely unlawful.

Marc: And then he has to explain why anyone can say so in court.

Gwen: The Trust has members all over the country, but it just chose to put forward this one person. So the case lives or dies on Hoagland. He relies on the Lujan sentence, and on Summers, where the Court said that an injury to mere aesthetic interests would suffice. Then he builds the White House as a particular place. And he quotes Teddy Roosevelt's 1902 message to Congress, written while thanking Congress for appropriating money for the wings.

Marc: Which is a pointed choice. A president thanking Congress for the money.

Gwen: Chief Justice Roberts says:

A historic preservationist such as Hoagland can be aesthetically injured in a concrete, particularized way by the transformation of a historic building that she frequently enjoys, just as an environmentalist can sustain a concrete, particularized aesthetic injury from the extinction of a particular animal, or the transformation of a particular forest or river, that he regularly enjoys. With the Court's rejection of Hoagland's standing today, however, it now is the case that "I want to look at the 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 — no matter how distinctive the particular viewer's interest in looking at it may be.

Marc: So her credentials make her interest more intense. They don't obviously make it more concrete. A professor's taste is still taste.

Gwen: The dissent answers that the credentials aren't the injury. They're evidence that the use is real and regular. Decades of study, monthly visits, a documented reason to look at this building rather than any other. That's exactly the kind of showing that Joyce Kelly couldn't make. Her affidavit said she hoped to go back someday to view the crocodiles. Hoagland says she goes regularly.

Marc: And didn't someone in Lujan say regular use would have changed the answer?

Gwen: Yes, Kennedy did, in a concurrence. He wrote that it might seem trivial to demand that Kelly and the other members buy airline tickets or name a return date, but that this wasn't a case where it was reasonable to assume they'd be using the site on a regular basis. The obvious implication would be that regular use would have mattered. Hoagland's declaration is built to be that.

Marc: But then the majority has to be saying frequency isn't the issue here.

Gwen: Right. On the majority's reading, you could visit every day and it wouldn't help, because all that you're complaining about is that you dislike what you see.

Marc: OK, step back, though. This is the third time the Court has moved the line on how close you have to be to a place to sue about it.

Gwen: Yes. If we start with Sierra Club v. Morton in 1972, the Sierra Club sued to stop a ski resort in the Mineral King Valley, and it lost because it never alleged that any of its members actually used the valley. But the Court was clear that aesthetic and environmental harm could count. The plaintiff just had to be among the people actually harmed. So the message from that case was, find a member who's been there. Enter Lujan, which raises the bar. So then twenty years later, Joyce Kelly says she's been there. She traveled to Egypt to see the crocodiles' habitat. Under Morton, that could have been enough. Under Lujan — the case she's actually part of — it wasn't, because having been there describes the past, and standing to stop a future harm needs an injury that's actual or imminent. Here's how Scalia put it:

Marc: Such someday intentions, without any description of concrete plans, or indeed even any specification of when the someday will be, do not support a finding of the actual or imminent injury that our cases require.

Gwen: So after Morton, you needed someone who'd been there. After Lujan, you needed someone with a concrete plan to go back. And Hoagland has both. She's been going for decades. She goes once a month. She will continue to go once a month. The majority here says that still isn't enough.

Marc: Every time a plaintiff clears the bar, then the bar seems to move.

Gwen: Yeah, but look at how it moved this time. Morton and Lujan were asking whether the harm would actually land on you — whether you'd really be there. Nobody doubts that Hoagland will really be there. So the majority is now saying that what happens to her when she's there isn't an injury at all. It's not necessarily a higher bar on the same question. They've moved it to a different question.

Marc: And the Laidlaw distinction?

Gwen: Roberts goes straight at it. Yes, you enjoy a river by swimming in it and hiking beside it. But the principal way a person enjoys a historic building is by looking at it. If looking counts for the river plaintiffs as part of their injury, he says, the line between them and Hoagland doesn't hold.

Marc: And nobody fishes in the White House.

Gwen: The majority's best reply just goes back to what she lost. The Laidlaw plaintiffs lost the river as they used it. Hoagland hasn't lost the White House. She's lost the version she prefers. Whether that difference is principled, or just a way of describing the same thing twice, really is the entire case.

Segment 4 — The equities

Marc: OK, so the second half of the majority's order, though, deals with the equities.

Gwen: Yeah. They have two alternative rationales. For the equities, they're leaning heavily on security. The government filed declarations from the Director of National Intelligence and the heads of the CIA, FBI, Secret Service, the Secretary of State, Homeland Security, the Army. And the Army Secretary said that the height and mass of the above-ground structure were critical to shield the underground military installations from kinetic impacts. The majority set that against a harm it described as one member's offense.

Marc: If she has no injury, what's on the other side of that scale?

Gwen: So this is alternative grounds for the order. They're saying even if the Trust did have standing, the stay factors would still favor the government. And courts do that all the time. But to run the balance, you have to put her harm on the scale. The case that the majority cites here is Winter v. NRDC, a case about the Navy using sonar, where the plaintiffs' interest in marine mammals was considered real. It just lost to the Navy's training needs.

Marc: So in the second half of the order, her harm looks like the environmentalists' harm. Real, but outweighed.

Gwen: Yes. So the majority weighed it at what it thought it was worth, which is just one member's offense. Either way, the two halves of the order don't describe her injury in quite the same terms.

Marc: And the dissent's answer on security?

Gwen: So a footnote in the dissent answers it with the government's own words. In the district court, the government said its below-ground work was driven by national security concerns independent of the above-grade construction. And the injunction had already allowed the security facilities and any above-ground work needed to protect them. It only explicitly barred the ballroom.

Marc: So on that account, the equities argument is about the ballroom, not the bunker.

Gwen: Right. That's the way the dissent describes it. The majority's answer is that the Army Secretary's declaration — that the height and mass are the protection — is the essence of why they need that above-ground structure. And those two positions don't really meet. But nobody tested either one of those positions.

Marc: There's been more on the security side since August 31st, though.

Gwen: Yes. They'd already planned to have a drone port on the ballroom roof. That was in the government's filings. What happened since August 31st was that the AP reported that the Secret Service already had a smaller drone station, a few hundred feet away on a Treasury building. So it kind of complicates the claim that the ballroom itself is needed for air defense. But the Secret Service says the two are separate. And obviously, none of that reporting was before the justices.

Segment 5 — Bost: the same term, the other direction

Gwen: We're going to switch to the other similar standing issue the Court dealt with this term. Seven months earlier, the same Court decided Bost v. Illinois State Board of Elections. Here, Illinois counts mail ballots that are postmarked by Election Day or that arrive up to two weeks later. Congressman Mike Bost, who had represented southern Illinois since 2015, sued, arguing that federal law setting Election Day forbids counting ballots that arrived afterwards.

Marc: And the lower courts still said no standing.

Gwen: Yeah. This was at the Seventh Circuit. And it said his costs to monitor late ballots were voluntary spending to avoid a hypothetical harm — losing. And it noted that he'd won his last election with seventy-five percent of the vote.

Marc: Which translates as, you're going to win anyway. So what's it to you?

Gwen: That's the question the Supreme Court answers. And this is the Chief Justice, and he's quoting "What's It to You," a 1983 law review article on standing by Scalia when he was still a judge. And the answer, the Court says, is obvious. He's a candidate. A candidate has a personal stake in the rules that govern counting the votes in his election, whether or not those rules change his chances.

Marc: That's a difference from the ballroom order. So Bost doesn't have to show the late ballots hurt him.

Gwen: Right. The Court said candidates have an interest in a fair process, win or lose. And here's the analogy it gave:

Marc: Each runner in a 100-meter dash, for example, would suffer if the race were unexpectedly extended to 105 meters. Whether a particular runner expects to finish strong or fall off the pace in the final five meters, all would be deprived of the chance to compete for the prize that the rules define. The fastest to run 105 meters has not won the 100-meter dash.

So the analogy has a hole in it, though. In a race, the runners are the only people whose stakes are at issue. In an election, the voters are the ones deciding. Every voter in Illinois has an interest in the votes being counted lawfully.

Gwen: That's what Jackson says in the dissent. She's joined by Sotomayor — that an election isn't a contest among candidates with voters as spectators. The interest in a fair count is common to every voter, and the Court has said for a century that an interest common to the public is a generalized grievance. So she calls the majority's rule a harm-free, status-based standing rule for one kind of plaintiff.

Marc: And her comparison?

Gwen: She compares this to Los Angeles v. Lyons, where a man was choked unconscious by LAPD officers and couldn't get an injunction against the chokehold policy, because he couldn't show he'd likely be choked again. Under a rule based on status, she wrote, he might have claimed an interest in the rules governing police encounters with people like him. Candidates get a status rule. Lyons didn't.

Marc: Okay, so that one kind of stings. And there's also a third opinion here. Barrett concurred only in the judgment, and she was joined by Kagan.

I cannot join the Court's creation of a bespoke standing rule for candidates. Elections are important, but so are many things in life. We have always held candidates to the same standards as any other litigant.

So how did Bost get in, on her view?

Gwen: This was just money. His campaign paid poll watchers to monitor the counting of late-arriving ballots, and she treated that the way the Court treats a traditional pocketbook injury — reasonable spending to guard against a substantial risk. Her model was a 2010 case where alfalfa farmers spent money to protect their crops from genetically engineered seed. The majority rejected that route. It said a candidate who paid poll watchers a penny would have standing, while one who used volunteers wouldn't.

Marc: So three opinions and three different theories, and a candidate still wins seven to two.

Gwen: Yes. And that rule reaches well past Bost. The majority held that candidates have standing to challenge the rules governing how votes are counted in their elections, whether or not those rules hurt their chances. And this wasn't a one-off. The opinion borrowed from a case from the term before, Diamond Alternative Energy v. EPA, where fuel producers had challenged EPA's approval of California's vehicle emission standards. The standards regulated carmakers, not the fuel companies, so the producers' injury ran through a third party. It ran through what the carmakers' response would be. But the Court still found standing, saying that the producers weren't mere bystanders, and that the effect on fuel demand was predictable. Bost quotes that phrase for candidates.

Marc: And did he win on the merits?

Gwen: That's the postscript. In June, the Court held five to four that the federal Election Day statutes don't stop a state from counting ballots that are postmarked by Election Day, even if they arrive after. That was Mississippi's law, not Illinois', but it rejected the statutory theory behind Bost's suit. So standing got him in the door, but it didn't get him anything on the other side of it.

Segment 6 — Side by side

Gwen: Here, Justice Barrett was the interesting one. She refused a special rule for candidates, and she found standing in Bost only on a narrower theory. But she joined the majority in rejecting Hoagland. The overall pattern invites an ideological explanation, but the opinions themselves apply doctrinal distinctions. Each side had a principled way to reconcile its two votes. For the four justices in both majorities, a candidate's interest differs in kind from a voter's, because the candidate is the one competing; Hoagland's interest is a more informed version of the same view every passerby has. For Sotomayor and Jackson, the fair-count interest in Bost belongs to every voter; Hoagland alleged a documented, individual pattern of use that most people don't share.

Marc: So both cases ask the same question. Is this plaintiff's interest different in kind from everyone else's? And the justices disagree about what counts as a difference in kind.

Gwen: Right. The Bost majority found the difference in who he is. He is a candidate. The ballroom dissent found it in what she does — her monthly visits, a professional life built around historic buildings. The ballroom majority rejected use here, and the Bost dissent rejected status there. So the doctrine doesn't say which one matters.

Marc: The problem you're describing isn't these justices. It seems it's the doctrine. Concrete and particularized are open-textured words, and any justice applying them is going to be making judgment calls.

Gwen: Yes, that's the point from the standing episode. We've got two cases from one term to show it. The doctrine sorts plaintiffs by something about them, like who they are or what they do. But the test isn't tightly defined enough to keep the result from depending on who's applying it.

Marc: And Lujan says vindicating the public interest is the job of Congress and the president. And if no one has standing to enforce Section 8106, that's not a gap. It's an assignment.

Gwen: Yeah. The Court has said since the 1970s that "if these plaintiffs can't sue, nobody can" isn't a reason to find standing. And that answer is at its strongest when the political branches are positioned to act. Here, the challenged project was ordered by the president. So if Article III keeps the courts out, the institutional assignment runs to Congress.

Marc: And Congress has certain tools. It wrote Section 8106. In fact, bills expressly authorizing the ballroom were introduced this spring, but none have become law. It can pass one of those, or a statute forbidding it. It controls appropriations. It can hold hearings. It is not powerless.

Gwen: Yes, that's true. But the practical question is timing. The government expects the framework to be substantially finished by November, possibly before the Court even decides whether to hear the case. Whatever Congress does, it may be acting on a structure that's already standing, even if the building won't officially be totally finished until 2028.

Closing

Gwen: Where this stands: the stay remains in place while the government has time to file its petition. No petition has been filed, but the deadline falls in early November, and the government can also ask for an extension. So because the stay remains in place during that period, the order itself doesn't create much pressure to file sooner. If the Court does take the case, the standing question comes back on full briefing.

Marc: So could the Trust fix this with a better record?

Gwen: The Trust could build a fuller record around Hoagland's use of the site, but the majority's theory doesn't turn on how much evidence she has. It turns on what kind of harm she's describing. Two courts say the law probably wasn't followed, and the door may close before any court gets to actually say so for good.

Marc: The Sierra Club lost because no member had been there. Joyce Kelly lost because she had no concrete plan to go back. And Alison Hoagland goes once a month, and she's probably going to lose anyway.

Gwen: Yes. So this is the real question the Court's looking at: what the Court thinks you've actually lost, and whether it sees that loss as yours or as everybody's.

So that does it for today's episode of Administrative Remedies. Thank you for joining us today. Please, if you enjoy this podcast, enjoy this episode, give us a like on Spotify, iTunes, or whatever platform you're listening on. And be sure to tune in next time, where we'll continue to dive into the contours of administrative law. Because remember, you can't fix what you don't understand.

Administrative Remedies is produced by Professor Gwendolyn Savitz and Professor Marc Roark at the University of Tulsa College of Law.