Earlier this summer, liberal Justice Elena Kagan defended the Supreme Court’s Republican-appointed majority as conservative, rather than partisan. “Is this court very conservative? Does it do a bunch of things that are out of the playbook of the conservative legal movement that I think are deeply wrong? You know, yes,” she said at a conference. “But is this court the kind of puppet for the current administration? I think definitely not.”
Those who want to portray the court as a puppet for President Donald Trump will point to Monday’s ruling on the White House ballroom as supposed proof. Five conservative justices said the construction could continue. Four justices — Chief Justice John G. Roberts Jr. and the three liberal justices — dissented.
But look at the case’s details, and they actually vindicate Kagan’s point. The majority based its decision on standing. In general, a person needs to face a “concrete and particularized” injury to bring a valid lawsuit. This suit was brought by the National Trust for Historic Preservation. One of its members, Alison K. Hoagland, who has studied D.C.’s architecture, said she was injured by the aesthetic change being wrought to the White House.
That was a reach. “This Court has not found standing in circumstances like these before,” the majority wrote. “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.” Millions of Americans are offended at Trump’s unilateral effort to change the White House, but that doesn’t give courts standing to enter a judgment on their behalf.
Saying so reflected venerable conservative priorities. In general, while liberals have been open to relaxing rules around standing, conservatives have resisted, insisting that plaintiffs show that they faced a concrete harm before courts can act. Conservatives have feared — long before Trump — that loosening this requirement would damage the judiciary by making it referee too many policy disputes.
Justice Amy Coney Barrett has consistently expressed concern about this sort of inflation of the judicial role. She has drawn the ire of some Trump partisans for breaking with the president on key issues. But she emphasized last year in her book “Listening to the Law” that not all political disagreements have a judicial solution. She joined the majority in this case.
It may be that some person or institution has standing to challenge Trump’s decision to build a ballroom without congressional authorization. But the National Trust for Historic Preservation — resting its claim almost entirely on Hoagland’s impressions — was not a good plaintiff.
If someone can clear the standing threshold, they’ll have a powerful case that Trump exceeded his authority. Congress controls federal property and, as Roberts’s dissent emphasizes, it never authorized this project. The majority was explicit that it does not foreclose future challenges to the ballroom: “Today, we do not pass upon the legality of the government’s East Wing project.”
This was a conservative decision, not a pro-Trump one. And while many Democrats disagree with Trump’s unilateralism, future Democratic administrations will probably appreciate the existence of a ballroom to host certain gatherings, assuming construction is completed. It’s a shame that the separation of powers didn’t work as intended, with Trump and Congress agreeing on what reasonable construction would look like. But the Supreme Court wouldn’t have strengthened the constitutional order by overstepping its own legal role.
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