In a 5–4 ruling Monday on the issue of standing, the Supreme Court stayed a district court injunction that would have halted construction on the White House’s new ballroom. This issue has been a prominent news item: After the government demolished the old East Wing last December and began building its replacement, which included a below-ground military installation and the state ballroom, the National Trust for Historic Preservation sued, claiming the project violated federal law. The district court found standing and enjoined above-ground construction, except as “strictly necessary” to the protection of the president, his staff, and the White House. The D.C. Circuit upheld the injunction. The government went to Chief Justice Roberts for emergency relief, after which he issued an administrative stay to let the full Court weigh in, and now it has.
The per curiam opinion in National Park Service v. National Trust for Historic Preservation thoroughly takes down the National Trust’s theory of standing, which rested entirely on one member, Alison Hoagland, a D.C. resident who says she visits the White House neighborhood monthly and finds the ballroom’s “scale,” “height,” and “massing” personally distasteful. That allegedly inflicts “injuries” to her “aesthetic, cultural, and historical interests.”
The Court noted it has “repeatedly held that mere offense, disagreement, or distaste does not qualify as a concrete and particularized injury under Article III.” If it indulged the National Trust’s “unprecedented and limitless” theory that mere offense at a government project is enough to sue, it would mean that “virtually every citizen had standing to challenge virtually every government action that they do not like.”
Citing last year’s decision in Trump v. CASA, the Court also made the following point on the irreparable harm component that is an essential part of injunctive relief: “The district court likely exceeded its Article III authority to enjoin the activities of a coordinate branch of government.” The litigation featured declarations from numerous government officials that included two cabinet members and directors of the CIA, FBI, and Secret Service “attesting to national security and other harms that would likely arise from enjoining a ‘single, coherent’ project that cannot be readily cleaved into distinct below- and above-ground pieces.” The Court made clear it was not opining on the merits, but next to the national security concerns raised in this litigation, the “harms and equities” on “the other side of the ledger” of Hoagland’s alleged aesthetic injury “are not nearly in equipoise.”
Chief Justice Roberts, joined by Justices Sotomayor, Kagan, and Jackson, dissented on both standing and the merits, citing for the latter a statute prohibiting the construction of buildings on federal grounds in D.C. without the “express authority of Congress.” As for standing, Roberts cited cases including Lujan v. Defenders of Wildlife (1992) and Friends of the Earth v. Laidlaw Environmental Services (2000) for support of Hoagland’s “aesthetic injury” standing hook. But in Lujan, where the plaintiffs’ desire to observe endangered wildlife was accepted as a “cognizable interest,” the Court rejected their claim of standing and held that a cognizable interest is necessary but not sufficient for Article III standing. A plaintiff still must show a “concrete and particularized” injury. And Laidlaw does not help the National Trust because the plaintiffs there had given up actual, concrete recreational uses of a river—fishing, swimming, camping, and picnicking in its vicinity—on account of the defendant’s pollution, an injury that goes well beyond the offense or distaste Hoagland alleges here.
The dissent tried to beef up its standing argument by invoking Hoagland’s expertise and commitment—“her decades-long membership in the Trust, leadership role in the organization, academic work as a professor of history and historic preservation, volunteer work providing presentations on the District of Columbia’s historic architecture, and authorship of works on historic American architecture.” If that argument had prevailed, we would be left with an elitist view of standing in which academics and other private citizens with lofty titles have veto power over public works that the rest of us don’t.
Having shut down the abuse of nationwide injunctions last year in CASA, the Court has now delivered a welcome course correction for lower courts on the abuse of standing doctrine as well.