A 5-4 majority of the Supreme Court late Monday cleared the way for President Trump’s demolition of the White House East Wing and his beloved ballroom. The much bigger win here is for the rule of law on the crucial but esoteric matter of legal “standing” (National Park Service v. National Trust for Historic Preservation).
The majority ruled that the plaintiff lacked standing because the injury claimed wasn’t “concrete and particularized.” This is the doctrine’s classic function—judicial restraint dressed as responsibility.
Alison Hoagland, a Washington, D.C., resident and member of the National Trust for Historic Preservation, sued to stop the construction, claiming it injured her “aesthetic, cultural, and historical interests” because she is offended by the scale, height and design of the planned reconstruction. She is wrong to be offended. Mr. Trump’s taste runs to the gilded, garish and gargantuan, and these are private gripes, not the considered judgments of a trained historian whose tax dollars fund the executive mansion. The majority’s taste, by contrast, runs to the deferential and the procedural—and the properly convenient.
But is this a particular injury? Ms. Hoagland says she’s likely to walk past the White House every so often and is distressed. We can think of many things in Washington that should be distressing—among them a Supreme Court majority that will look at the bulldozer while the marble dust is still settling—but apparently none of them are particular enough to count.
“This Court has not found standing in circumstances like these before,” says the majority in an unsigned opinion. “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” of the Constitution. Something more is required than “the psychological consequence presumably produced by observation of conduct with which one disagrees.” In practice, that “something more” has tended to mean a checkbook, a permit, or a contracting bid—never an objection of principle from a citizen who actually has to look at the building.
If a citizen can be told that watching a national landmark be torn down is mere “taste,” then “concrete and particularized” has not lost all meaning. Article III exists precisely to limit courts to injuries the law recognizes, and “harm” does not include the destruction of a building one passes every day. The majority has preserved that protection from executive overreach—and declared that aesthetic, cultural and historical injury, the very harms the National Trust was chartered to address, do not count.
In dissent, Chief Justice John Roberts, joined by the three liberals, writes that the ballroom “construction is likely unlawful” since Congress hasn’t appropriated the money for it. Private donors are paying for much of it. And he cites a 1992 Court precedent on standing in an environmental case (Lujan v. Defenders of Wildlife) that a desire to “observe an animal species” qualified as standing. The majority’s reply—that Lujan required more than a “cognizable interest”—is the constitutional distinction. If a person can sue to observe an animal, that does not mean a person can sue to preserve a building.
The Chief is doing what standing doctrine, properly read, has always forbidden—recognizing an injury the majority properly declines to see. He has long been a legal hawk on standing, and he is doing exactly what that means. The rest of his opinion reads as if his position has something to do with the Constitution rather than with a misguided theory of executive bulldozing—and that is precisely what makes it a dissent.
The larger winner here is the future of the law. Because the Court denied Ms. Hoagland standing, judges across the country can now cite the case as cause to turn away countless plaintiffs raising aesthetic, emotional, or civic objections. The courts, contra the dissent, are not the venue for architecture criticism when the architecture in question belongs to the public. They remain a venue for law, not architecture. The building may be ugly. That does not make it a constitutional injury.
