✏️ Legal Pad
Standing Room Only
A week ago I told you about the White House ballroom: the $400 million project two federal courts had called probably illegal, and the administration pouring concrete around the clock while arguing it was too late to stop. On Monday night the Supreme Court ended the fight, 5 to 4, in National Park Service v. National Trust for Historic Preservation. Here’s the remarkable part, and what’s cool about the law to the “insiders” and infuriating to lay people: the Court never decided whether the project is legal. It decided that the people suing had no right to ask the question.
The doctrine is called standing, and it is the courthouse gate. Article III of the Constitution limits federal courts to actual cases, which means the person suing must show an injury in fact: concrete, particularized, and real. Alison Hoagland, a Washington resident and National Trust member, sued because the ballroom offended her “aesthetic, cultural, and historical interests.” She walks past the White House and is distressed by what she sees. Given Trump’s personal taste for gargantuan and gaudy, it’s not an unfair assessment. But, “not enough,” said the unsigned majority opinion: “mere offense, disagreement, or distaste does not qualify as a concrete and particularized injury under Article III.” Being upset by government action, in other words, is not the same as being injured by it. That’s a really important distinction.
The surprise was the dissent. Chief Justice Roberts, joined by the three liberal justices, wrote that the construction “is likely unlawful” since Congress never appropriated a dime for it, and he leaned on Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), which recognized that even the desire to observe an animal species can be a cognizable interest. He lost. So the story ends the way these fights often do: not with an answer about what the government may build, but with a ruling about who may ask. The concrete is permanent, and no court ever said it was legal.
Closer to Home: standing is the rare doctrine my clients never lose sleep over. When a tractor-trailer rear-ends you on I-85, nobody wonders whether your injury is concrete and particularized. A herniated disc is about as concrete and particularized as injury gets. Standing fights belong to plaintiffs who are offended. My clients are the ones who are hurt, in South Carolina, in North Carolina, and in ways no justice has ever had to squint at. The courthouse gate the Supreme Court closed on Monday was never the one my clients walk through.
💡 Sidebar
Lawyer Tip No. 1: Don’t Be a Liar
There’s a reason this tip is No. 1. And it’s come to mind recently based on the conduct of opposing counsel in a current case, though I doubt she’s one of my tens of readers. Yes, you are an officer of the court, and lying to a judge is the express lane to losing a license. But that’s not the real reason, it’s just the reason that exists in the rule books.
The real reason is that lawyers remember. The bar is a small town inside a small town inside of someone’s mom’s backyard. The lawyer across the aisle this year will be across the aisle next year, and someday you will need him to take your word on an extension, a lien, a deadline. The moment you lie to another lawyer about a case, your credibility is gone, and no verdict, no settlement, no outcome will ever buy it back. I am fortunate in that I have great relationships with 95% of the lawyers I work with. The 5% I don't get along with all have one thing in common.
So the first tip isn’t a trick at all: tell the truth always, but especially when it costs you, because that’s the only time anyone is watching. And in the interest of full disclosure, the corollary: if someone lies to me during a case, I will burn their playhouse to the ground. Either on this case, or the next.
⚖️ Closing Arguments
Hello, Baby Pat. Goodbye, Sleep.
Alderson Law welcomed its newest associate this week, albeit through an unusual hiring practice. Some firms recruit at law schools; we prefer the purest form of promoting talent from within. Pat arrived with no bar card, no billable hours, and no respect whatsoever for regular office hours, and he still managed to renegotiate the entire household’s terms of employment before Ash even had her lunch. He communicates exclusively in urgent late-night filings, and he has already served his first demand: to be fed immediately, and every two hours thereafter, in perpetuity. The partnership track has never looked so promising.
The status report, which is the only part of this newsletter that actually matters: Mom and baby are doing great. Big sister is over the moon, has appointed herself managing partner, and has already briefed the new associate on the firm’s most important policies: she is “Elsa Ariel Mermaid,” and he is not. And Dad? Dad is tired and happy.
Last week I promised this edition might arrive late, short, or written one-handed at 3 a.m. by the proudest man on the East Coast. I keep my promises. Welcome to the family, Pat. The future of this firm is in good, tiny hands.
Court is in recess- see you next Friday.