Supreme Court Refuses to Let 'Aesthetic' Objections Stop Trump's Ballroom

The injunction against Donald Trump's East Wing ballroom has been shot down by the Supreme Court. The Court's 5–4 decision, by a per curiam opinion in National Park Service v. National Trust for Historic Preservation in the United States, was issued on the emergency docket, and the Court professed that "we do not pass upon the legality of the government's East Wing project." Indeed, its decision doesn't address the intricate web of statutes and appropriations upon which a divided panel of the D.C. Circuit relied in ruling that Congress (which has plenary constitutional authority over federal property) had not delegated authority to the president to cross the line beyond the mere "improvement" of the property. But while some emergency docket rulings might not settle the matter, the Court here rejected the plaintiff's legal theory of Article III standing to sue. In short, nobody has suffered a legal harm from the ballroom to justify making a federal case of it.

That looks like the right decision. The D.C. Circuit found that the plaintiff, the National Trust for Historic Preservation in the United States, had standing to sue based upon an "aesthetic injury" to one of its members. As the Court describes that injury:

> The Trust relies on a declaration from a single of its members, Alison K. Hoagland. Hoagland says that she lives in Washington, D. C., and expects to visit the neighborhood around the White House about once a month...She asserts that having to view the finished ballroom the government is constructing would cause her to suffer injuries to her aesthetic, cultural, and historical interests because she finds the scale, height, and massing of the government's design distasteful. [Quotations and citations omitted.]

If you're familiar only in a general sense with how the law of standing works and its roots in common-law doctrines of injury, your first instinct as a normal, sane person would probably be that this is a preposterous basis to file a federal lawsuit. In the immortal words of The Dude in The Big Lebowski, "that's just, like, your opinion, man." Hoagland hasn't been personally harmed in any way; she just doesn't like the way the place looks. That would be a flimsy basis for a property owner to complain of a neighboring building, short of meeting the common-law standard for a nuisance — let alone a person who just walks by a building now and then.

As it happens, "aesthetic standing" really is a thing in the law, however — if a dubious one. The doctrine, like so many silly things, comes out of a 1970s opinion, Sierra Club v. Morton (1972). But the Morton Court put absolutely zero analysis into the roots of the concept in Article III or the common law, because the Sierra Club lost that case on standing grounds, given that it couldn't identify any members who actually used the parks at issue. Of course, environmental lawyers have gotten savvier since then about finding such people before filing suit. The doctrine and its bases and limits remain underexamined by the Court (which divided several ways in another decision rejecting standing, Lujan v. Defenders of Wildlife (1992), written by Justice Antonin Scalia), but it has been used since then in a variety of cases, especially within the D.C. Circuit.

It is, however, largely a creature of environmental law, in which courts tend to stretch the law of standing on the theory that the legal protection of nature is intended in good part to benefit people who use parks, who hunt and fish and ski and camp, and who engage in other such activities that would be harmed by the extinction of species or the blighting of recreational areas. This case, however, is quite different: If Trump is breaking the law in renovating the East Wing of the White House, the real victim is Congress. That's why John Yoo has argued that it should be up to Congress to stop it. It's also why Trump, who knows perfectly well that his party is likely to lose one or both Houses in November, is fighting to get the project completed before January, so as to create facts on the ground.

The Court was unimpressed with the effort to translate aesthetic standing into this context, based entirely upon Hoagland's distaste for the design:

> 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. . . .
>
> Perhaps nearly any government action or project offends someone's sensibilities. And adopting the Trust's unprecedented and limitless view that offense alone suffices to establish a concrete and particularized injury would seemingly usher in a world where virtually every citizen had standing to challenge virtually every government action that they do not like—an approach to standing that this Court has consistently rejected as flatly inconsistent with Article III. . . . Absent some considerable revision to our existing standing doctrine, then, the government is likely to succeed on the merits. [Quotations and citations omitted.]

Aside from the validity of aesthetics as a legal injury, the Court was concerned with the related problem that tends to plague environmental cases: that Hoagland's theory would either let basically everybody sue, or worse, give special legal status to "experts":

> A cognizable interest [such as an aesthetic injury] is a necessary component of standing but not a sufficient one. . . . Among other things, a plaintiff must also show that its claimed injury is concrete and particularized. . . . As our precedents have repeatedly held, a plaintiff's distress at or disagreement with a defendant's actions does not clear that bar. . . .
>
> The Trust replies that, even if this rule routinely applies in cases brought by ordinary citizens and taxpayers, it should not apply . . . because Hoagland . . . possesses focused and substantiated expertise in historic architecture. . . . Our standing rules, however, contain no such special carveout. Article III standing, we have consistently held, is not measured by the intensity of the litigant's interest, . . . or by a litigant's special interest in the subject. [Quotations and citations omitted.]

The case was 5–4 because Chief Justice Roberts joined the liberals, who prudently let him take the lead in the dissent. Roberts, of course, is a proceduralist who is not fond of presidents just winging it. He complained that "with the Court's rejection of Hoagland's standing today, . . . it now is the case that 'I want to look at a 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 White House is not just any building, and—when it comes to historic preservation—Hoagland is not just any person."

But in a republic where all of us are created equal, maybe she is.